CIVIL PROCEDURE BACK TO BASICS 68: THE FORMAL REQUIREMENTS OF A WITNESS STATEMENT (AGAIN)

I am returning to the issue of the basic and mandatory requirements of a witness statement.  Here we are looking at the very basic rules as to what should appear on the first page of a witness statement.

 WHY YOU SHOULD COMPLY: THE MESSAGE YOU ARE SENDING OUT

There are a number of mandatory requirements for a witness statement that are simply ignored in about 40% of the statements I see (I don’t know whether that is a representative sample).  The failure to comply with these requirements can send out a number of messages:

  • The lawyer preparing this statement doesn’t know the rules.
  • The lawyer preparing this statement doesn’t care about the rules.
  • The lawyer preparing this statement doesn’t think they rules should apply to them.

None of these messages are positive and the lawyer’s client is already at a disadvantage.  In fact PD32  25.1 states that where a witness statement, or exhibit, does not comply with Part 32 or the Practice Direction in relation to its form “the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.”

So the non-compliant lawyer is playing a dangerous game. The failure to comply means that they have to rely on the discretion of the court to admit the statement, their client has lost the “right” to be heard.

A CHECKLIST

1.         The witness statement must have the heading of the proceedings.
2.         The top right hand corner must contain
(i)    details of the party;
(ii)  initials and surname of the witness;
(iii)  the number of the  statement;
(iv) the identifying initials and number of each exhibit and
(v) the date the statement is made.
3.         The statement must contain:
(1) The full name of the witness.
(2) Address.
(3) Occupation or description.
(4) Whether they are  party to the proceedings or the employee of a party.

THE RULES PD:32

Heading
17.1 The witness statement should be headed with the title of the proceedings (see paragraph 4 of Practice Direction 7A and paragraph 7 of Practice Direction 20); where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows:
Number:
A.B. (and others)
Claimants/Applicants
C.D. (and others)
Defendants/Respondents
(as appropriate)
Back to top
17.2 At the top right hand corner of the first page there should be clearly written:
(1) the party on whose behalf it is made,
(2) the initials and surname of the witness,
(3) the number of the statement in relation to that witness,
(4) the identifying initials and number of each exhibit referred to, and
(5) the date the statement was made.
Body of witness statement
18.1 The witness statement must, if practicable, be in the intended witness’s own words, the statement should be expressed in the first person and should also state:
(1) the full name of the witness,
(2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer,
(3) his occupation, or if he has none, his description, and
(4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case.