In a post last week we looked at a comment in the judgment of HHJ Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch which concluded

“In so far as there is a criticism of the preparation it relates to the preparation of and contents of the witness statements which were not confined to the factual material which they addressed but included numerous comments and statements of opinion which were, of course, inadmissible. The parties are referred to Appendix 9 of the Chancery Guide for details of what should and should not be included in a witness statement.”

I have written, on many occasions, that many aspects of the Chancery Guide are not just for Chancery Practitioners. The guidance in Appendix 9 is of universal application.

“Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument.”


Appendix 9: Guidelines on witness statements
  1. The function of a witness statement is to set out in writing the evidence in chief of the maker of the statement. Accordingly witness statements should, so far as possible, be expressed in the witness’s own words. This guideline applies unless the perception or recollection of the witness of the events in question is not in issue.
  2. Witness statements should be as concise as the circumstances of the case allow. They should be written in consecutively numbered paragraphs. They should present the evidence in an orderly and readily comprehensible manner. They must be signed by the witness, and contain a statement that he or she believes that the facts stated in his or her witness statement are true. They must indicate which of the statements made are made from the witness’s own knowledge and which are made on information and belief, giving the source of the information or basis for the belief.
  3. Inadmissible material should not be included. Irrelevant material should likewise not be included.
  4. Any party on whom a witness statement is served who objects to the relevance or admissibility of material contained in a witness statement should notify the other party of their objection within 28 days after service of the witness statement in question and the parties concerned should attempt to resolve the matter as soon as possible. If it is not possible to resolve the matter, the party who objects should make an appropriate application, normally at the PTR, if there is one, or otherwise at trial.
  5. It is incumbent on solicitors and counsel not to allow the costs of preparation of witness statements to be unnecessarily increased by over-elaboration of the statements. Any unnecessary elaboration may be the subject of a special order as to costs.
  6. Witness statements must contain the truth, the whole truth and nothing but the truth on the issues covered. Great care must be taken in the preparation of witness statements. No pressure of any kind should be placed on a witness to give other than a true and complete account of his or her evidence. It is improper to serve a witness statement which is known to be false or which the maker does not in all respects actually believe to be true. In addition, a professional adviser may be under an obligation to check where practicable the truth of facts stated in a witness statement if he or she is put on enquiry as to their truth. If a party discovers that a witness statement which they have served is incorrect they must inform the other parties immediately.
  7. A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument. Witness statements should not deal with other matters merely because they may arise in the course of the trial.
  8. Witness statements very often refer to documents. If there could be any doubt as to what document is being referred to, or if the document has not previously been made available on disclosure, it may be helpful for the document to be exhibited to the witness statement. If, to assist reference to the documents, the documents referred to are exhibited to the witness statement, they should nevertheless not be included in trial bundles in that form: see Appendix 6, paragraph 4. If (as is normally preferable) the documents referred to in the witness statement are not exhibited, care should be taken in identifying them, for example by reference to the lists of documents exchanged on disclosure. In preparation for trial, it will be necessary to insert cross‑references to the trial bundles so as to identify the documents: see Appendix 6, paragraph 24.
  9. If a witness is not sufficiently fluent in English to give his or her evidence in English, the witness statement should be in the witness’s own language and a translation provided. If a witness is not fluent in English but can make himself or herself understood in broken English and can understand written English, the statement need not be in his or her own words provided that these matters are indicated in the statement itself. It must however be written so as to express as accurately as possible the substance of his or her evidence.