Examination in chief is rare in civil cases, many (perhaps most) practitioners will never have seen it done in court.   There is a rule against asking leading questions  when taking a witness through their evidence.   There is a good reason for this. Here we look at some cases that illustrate that point.


“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”


The judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) should be essential reading for anyone taking a witness statement.  Among other things this case emphasises the dangers of  leading questions when interviewing witnesses. There are dangers in leading questions. The consequent evidence can be misleading and, ultimately, harmful to the party calling that witness.


“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.”


I am here repeating points made in an earlier  post in , Drafting witness statements: the questions you ask will determine the answers you get. That post looked at the dangers of asking leading or “slanted” questions of witnesses to lead them to the answers the interviewer wanted.

Since then we have also looked at the decision in  Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC).  The defendant was applying for indemnity costs after the claimants’ action failed. One of the grounds the defendant put forward was that a witness statement was misleading.

“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 [judgment, paras 67, 92 and 95]. The inescapable inference (said Mr Lixenberg) was that the claimants either deliberately put forward a selective version of the evidence that Mr Thomas would give or failed adequately to explore the true nature of his evidence despite being asked to do so. Either way, the reliance placed on Mr Thomas’s evidence was unreasonable in a high degree.”

The judge rejected the submission that the statement had been taken in a deliberately misleading way.  However the failure to take a statement had a highly significant effect on the litigation.

“As for the use of Mr Thomas’s witness statement, this may be seen as unfortunate but not, I think, as improper or unreasonable to a high degree. It is important to remember that Mr Thomas did not have any specific recollection of the Property or his communications with the defendant. This meant that the contents of the witness statement depended, to a greater degree than might normally be the case, on the angle of approach and the focus of the enquiry. The statement also was in the nature of a response to the factual case of Mr  Wheatley , whose oral evidence added materially to the account of how Mr Thomas’s advice was elicited in the relevant conversation. The result of all of this was that a statement that responded in perhaps a rather literal way to the defendant’s evidence proved not to have explored avenues of enquiry which, when followed at trial, were damaging to the claimants’ case. As mentioned above, the defendant’s solicitors expressly raised concerns about Mr Thomas’s statement. But I am not told that they produced a statement of their own from him or specifically challenged particular matters of fact or assertion. I do not at all think that the statement obtained from Mr Thomas by the claimants’ solicitors was drafted with a view to being misleading, and it seems to me that it was not unreasonable of them to rely on it, although the loss of the case at trial might possibly have been avoided if they had explored the issues more widely and intensively with Mr Thomas”


(1) Be careful who takes the statements

It is a pity that the taking witness statements is all too often a task delegated to the lowest level. As the Shikhell case shows that the drafting of even the most peripheral statements can lead to major problems for those who make them.

(2) Be wary of leading questions

There are good reasons why leading questions are not allowed when asking questions in evidence in chief.   In the Shikhell case we can see how “… has he expressed sadness..?”  became “James is sad…”.   As we have seen these words then went on to form a count against the witness in the contempt of court proceedings.

(3) Learn the law of evidence

A more fundamental question relates to the very question “… has he expressed sadness…” itself.   Why was this asked?  A witness is called as a witness of fact. The claimant’s state of mind is not properly a matter for a “character” witness at all.  As the judge observed the statements went well into the realm of opinion. They would not have any weight at all.

(4) Character witnesses are hardly ever useful

The other question is why the witnesses  in the Shikhell case were needed at all?   In a case where there are batteries of experts it is difficult to envisage a statement from a family friend having any effect on the damages award. In fact it is invariably true that additional witnesses cause additional problems.

(5) Remember your drafting of a witness statement could end up with the witness in jail

This is the most salutary lesson of all.  These two witnesses in the Shikhell case were in grave danger of going to jail as a result of making witness statements.  One witness was fined £750 (and ordered to pay 5% of the MIB’s costs) as a result of failing to read the witness statement that had been prepared. That statement did not properly reflect his evidence.  Although responsibility for this clearly lies with the witness who signed the statement it has to be accepted that there are many people who will readily accept and sign a document sent to them by solicitors.

(6) Use the useful guidance in the Chancery Guide

The best advice on drafting witness statements comes from the Chancery Guide.  It is worthwhile printing a copy out for every fee earner involved in taking statements.  (See Appendix 9 – 116).

(7) Take heed of the reported cases.

Inevitably reported cases give some indication of what not do to.

In Alex Lawrie Factors Ltd -v- Morgan [1999] The Times 18 August. The Defendant was disputing a claim by the Claimant on the grounds that when she signed a document she did not understand its full effect and should have received independent advice. Her affidavit went into great detail in relation to the case law involved and explained how these cases applied to her.  The trial judge concluded that a witness with such a detailed knowledge of the case law must have understood the position and gave judgment to the claimant.  On appeal it became clear that the defendant had little input into the drafting of her statement and that, in fact, she had difficulties with basic literacy. Lord Justice Brooke observed that:-

This case is a very good warning of the grave dangers which may occur when lawyers put into witnesses’ mouths, in the affidavits which they settle for them, a sophisticated legal argument which in effect represent the lawyer’s arguments in the case to which the witnesses themselves would not be readily able to speak if cross-examined on their affidavits.  Affidavits are there for the witness to say in his or her own words what the relevant evidence is and are not to be used as a vehicle for complex legal argument. Those considerations apply just as much to statements of truth under the Civil Procedure Rules as they do to affidavits.”

The judgment of H.H. Judge Dean Q.C. in E.D and F. Man Liquid Products Limited -v– Patel [2002] 1706 EWHC (QB) provides further guidance.  He was concerned that a lengthy statement prepared by a solicitor contained pages (and pages) of opinion and comments on the law.

Witness statements are not the place for argument. It means you have to read everything twice…. A lot of it is tendentious comment which is bound up with fact.  I think this witness statement is an example of what a witness statement should not be whether in the Commercial Court or anything else.  It is a tendentious advocate’s document. I am minded to disallow the cost of it actually… Look how long it goes on for. It goes on for 41 paragraphs. That is just a solicitor giving information on what his client has said.  He expresses a reference to his client’s belief which is not only irrelevant but inadmissible. I think that this is a statement of an enthusiastic solicitor who wishes he was an advocate much of this. It adds to the time of the hearing and it adds to the time of preparation. Here we have the Commercial Court practice which says that witness statements must comply with the rules. They should be as concise as the circumstances allow. They should not engage in argument. They must indicate which statements are made from the witness’s own knowledge and which are from other sources and state what is the source of the information and belief.”

(8) Do not follow this example

The following is a paragraph from a witness statement taken in a case I was involved in several years ago.

I hold the Defendant wholly responsible for the accident. They failed to brake steer or otherwise control their vehicle so as to avoid a collision and drove into collision with the claimant’s vehicle when by the exercise of proper skill and care they could have avoided doing so.”

The witness (an I.T. professional) did not talk in that kind of language. This part of the statement was clearly manufactured by the solicitor.  It made for extremely entertaining cross-examination.  It is a pity because it is part of a statement that was not needed; it was counter-productive and positively harmful to the claimant’s case.  There was no doubt that this was a passage inserted by the lawyer. It made interesting cross-examination material.


I am also providing a reminder of the guidance from John Munkman set out in Witness Statements and the Genius of John Munkman

(1) Take witness statements early. Do not assume a case will settle.

(2) Memories lapse with time.

(3) Be aware of the possibility that there is no property in a witness. The other side could interview a witness.

(4) Allow the witness to tell their story first, taking notes.

(5) When the outline is clear take the statement in chronological order.

(6) Amplify details when necessary.

(7) Test doubtful points by searching questions.

(8) Have “all the right facts in the right order”.

(9) Have explanation of any technical material as part of the text to clarify, not as a footnote.

(10) Each state of the evidence should be rounded off and completed before going on to the next.