It is possible to see some of the search terms that lead people to this blog (I should stress that there are no details of who made the search). One of the search terms yesterday was “solicitor forcing me to sign inaccurate witness statement“.  These were the precise words used. They highlight real difficulties in the preparation of witness statements that are often not addressed. There are difficulties faced by those who sign statements and those who prepare them on their behalf.

The maker of the statement clearly feels they are being “forced”.  If that witness gives evidence at trial there is little doubt that the witnesses evidence will be found not to be credible following even the most cursory cross-examination. Further it is not uncommon for the finger of blame to be pointed directly at the person who drafted the statement that the witness signed.


I have said many times that the best guidance on ethics and drafting witness statements can be found in the Bar Council guidance on the preparation of witness statements. (26_-_the_preparation_of_witness_statements (4))

The Guide states the issue succinctly:

  1. The cardinal principle in drafting a witness statement is that the witness will swear or affirm that the evidence is true. It is therefore crucial that the statement accurately reflects the witness’s evidence.
  2. The cardinal job of the person drafting the statement is to ensure that understand the relevant evidence and express that evidence in the witness’s own words.
  3. It is important that it is made clear to the witness that the statement, once approved, is the witness’s statement.
  4. Ultimately it is the witness’s own responsibility to ensure the evidence given is truthful.
  5. It is good practice to remind the witness of this from time to time.
  6. It is the not duty of the person drafting the statement to vet the accuracy of a witness statement.
  7. It may be appropriate to draw the witness’s attention to other evidence that conflicts with what the witness is saying and may make it difficult for a court to accept the witness’s evidence.
  8. If the witness maintains the evidence it should be recorded. Ultimately it is for the judge to decide the correctness of the witness’s evidence.


“6. It follows that the statement:
(i) Must accurately reflect the witness’s evidence. Rule 704 of the Code of Conduct states:
A barrister must not devise facts which will assist in advancing the lay client’s case and must not draft any … witness statement [or] affidavit … containing:
… (d) in the case of a witness statement or affidavit any statement of fact other than the evidence which in substance according to his instructions the barrister reasonably believes the witness would give if the evidence contained in the witness statement or affidavit were being given in oral examination ;
provided that nothing in this paragraph shall prevent a barrister drafting a document containing specific factual statements or contentions included by the barrister subject to confirmation of their accuracy by the lay client or witness.”
(ii) Must not contain any statement which Counsel knows the witness does not believe to be true. Nor should the witness be placed under any pressure to provide other than a truthful account of his evidence.
(iii) Must contain all the evidence which a witness could reasonably be expected to give in answer to those questions which would be asked of him in examination in chief. The witness statement should not be drafted or edited so that it no longer fairly reflects the answers which the witness would be expected to give in response to oral examination-in-chief in accordance with the witness’s oath or affirmation.”


Although a witness statement should not anticipate cross-examination. It is improper to omit material where such exclusion renders the evidence untrue or misleading.The BGuidance considers  the possibility that omitting material from a witness statement can, in certain circumstances, improper.

“ Although it is not the function of a witness statement to answer such questions as might be put in cross-examination, great care should be exercised when excluding any material which is thought to be unhelpful to the party calling the witness and no material should be excluded which might render the statement anything other than the truth, the whole truth and nothing but the truth. While it is permissible to confine the scope of examination-in-chief to part only of the evidence which a witness could give, that is always subject to Counsel’s overriding duty to assist the Court in the administration of justice and not to deceive or knowingly or recklessly to mislead the Court (Rule 302 of the Code of Conduct). Consequently, it would be improper to exclude material whose omission would render untrue or misleading anything which remains in the statement. It would also be improper to include fact A while excluding fact B, if evidence-in-chief containing fact A but excluding fact B could not have been given consistently with the witness’s promise to tell the truth, the whole truth and nothing but the truth. Whether it is wise and in the client’s interest in any given case to exclude unfavourable material which can properly be excluded is a matter of judgment.”


It is possible  (indeed extremely easy) for a lawyer to “contaminate” witness evidence. Not deliberately, and with the best of motives. The asking of leading questions, putting documents and suggestions to a witness can easily lead to an account that is incorrect.  This is recognised clearly in the Gestmin guidance.

In the Handbook for Litigants in Person (written by six highly experienced Circuit Judges).

“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).

The issue of unconscious bias in the selection of information is an important one. It is something not taught to lawyers, greatly to the detriment of their clients.


See for example the disastrous outcome for the claimants  in Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC).  The claimants’ solicitor had obtained a witness statement from a planning officer to support their case against a firm of architects.  However the witness statement was highly selective. This was considered by the judge when discussing the defendant’s application for indemnity costs.

“The second matter relied on by the defendant is the claimants’ use of a witness statement from Mr Thomas, the planning officer, that was calculated to give a misleading impression of the evidence he was likely to give. Mr Thomas’s witness statement was served under cover of a letter dated 16 November 2012. Almost immediately, the defendant’s solicitor responded, suggesting that the statement did not give a full and accurate account of Mr Thomas’s evidence and asking whether the claimants’ solicitors were satisfied that it “fully and accurately record[ed] all of his relevant evidence”. The claimants’ solicitors replied that the statement addressed the facts alleged in the defence and was not selective simply because, in doing so, it undermined those alleged facts. In the event, the defendant’s solicitors proved correct. Mr Thomas’s oral evidence was largely consistent with the factual case of the defendant and tended to support the defendant’s case on planning merits, while tending to undermine both the reliance placed on the witness statement by Mr Bate in forming his expert evidence and the claimants’ case on causation”


Succinct guidance is given in the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) where 16,626 claimants were persuaded (or persuaded themselves) that they had suffered injury to to a smoke & fumes from a major fire (only one, however, had visited a GP complaining of injury due to smoke).

“recall bias is always an issue in scientific research based on retrospective evidence, and this phenomenon is hugely magnified when one brings into the equation the obvious corollaries of the medico-legal component. Human beings are naturally susceptible and suggestible, particularly if they are made to believe that they form part of a coherent group with shared experiences, and if they risk none of their own resources in bringing a claim.”
“The standard-form questionnaires asked a series of leading questions. Many of the questionnaires examined in the context of the Test Claimants were shown to be inaccurate and exaggerated, calling into question the objectivity and integrity of the whole process. Nor does the whole set up of pop-up shops and cold-calling of potential Claimants inspire any degree of confidence.”
“Misleading information of this sort had the obvious tendency to encourage the bringing of claims, on the basis that the Defendant was a soft target and this was easy money. That this information was understood in exactly this way is revealed by the terms of the Facebook posts referred to at paragraphs 9, 10 and 12 of Ms Wilson’s witness statement, as well as by the evidence in Leon Swift’s case. I strongly deprecate this sort of practice. Not merely does it sail close to the wind in terms of its professional propriety, it is severely counter-productive as and when the case comes to trial.”


It is profoundly worrying that someone should feel the need to search this issue. It is even more worrying that the vast majority of the legal profession have had no training at all in these issues.  This weakness is often exposed when a matter reaches trial.  Drafting witness statements in the hope that cases will settle is a dangerous practice.