This report  of the Witness Evidence Working Group was produced at the end of last year.  It highlights some major issues in relation to the use of witness statements, and the role and experience of those preparing them. It has led to some changes in court practice.  It makes some points of general importance to all practitioners. (My own view, incidentally, is that if those preparing witness statements knew, and followed, the rules and practice directions in relation to the drafting of statements, and learned a modicum about evidence (in particular the misuse of “opinion” evidence) 95% of the difficulties with drafting statements could be avoided.  Further a reader can only be manifestly unimpressed with the comments that the preparation of evidence in chief is not part of some current lawyers “stock in trade”.  This is a central part of the lawyer’s role. The fact that these skills are not considered and developed by the firms involved, and the profession as a whole,  is a disgrace. We see the results, usually harmful for the lawyer’s own clients monthly (sometimes weekly) on the pages of this blog.

 “… the proper and sensible scope of evidence-in-chief is no  longer the stock-in-trade knowledge of those responsible for proofing witnesses and helping them draw up their statements.”


There is a comment on the absence of evidence in chief.

“Furthermore, throwing a witness into cross-examination straightaway puts them on the defensive from the outset, deprives them of the opportunity of making a favourable impression by evidence-in-chief, and encourages counterproductive over-lawyering and lengthening of witness statements in an attempt to anticipate cross-examination. The process of cross-examination often limits the witnesses’ ability to express things in their own words because of the advantage that the skillful cross examiner has in framing questions which admit
only of binary answers, and re-examination often does not provide an adequate opportunity to remedy it. “


The report makes the point that most practitioners now have no experience of evidence in chief and what this entails.

“Second, the vast majority of the current practitioners (solicitors and counsel), and indeed most of the judges, have little or no experience of trying commercial disputes under the previous system which required oral evidence-in-chief at
trial. Unsurprisingly, the proper and sensible scope of evidence-in-chief is no
 longer the stock-in-trade knowledge of those responsible for proofing witnesses and helping them draw up their statements. In view of this, the statement of 7
principle in paragraph H1.1(a) of the Commercial Court Guide that “the function of a witness statement is to set out in writing the evidence-in-chief of the witness” has limited practical utility”


“Third, and perhaps partly for the reason stated above, witness statements frequently stray far beyond any evidence the witness would in fact give if asked proper questions in chief. They often cover matters of marginal relevance and/or stray into comment and ‘spin’, even if blatant argument is avoided. It is easy to fall into the trap of assuming that evidence is either relevant or irrelevant.”


“A consistent theme that emerges from the more detailed answers given by many of the respondents is the over-lawyered nature of witness statements. The respondents to the survey described witness statements as “heavily crafted by solicitors”, “lawyer-led, rather than witness-led” and “a vehicle for the lawyer’s view of the case”. To alleviate this concern, one respondent suggested that there should be a standard rubric at the start of every witness statement explaining the purpose of the statement to the witness”


“In the more detailed narrative responses, many of the respondents pointed out that while the existing rules were broadly fit for purpose, in practice, no action was taken in respect of non-compliant witness statements. As one respondent put it, “failure to follow the rules is barely even commented on, never mind punished”. Some respondents observed that this may perhaps be because judges did not feel sufficiently on top of the issues at the CMC/PTR stage to determine whether the witness statement properly complied with the rules.”


This may be an over-harsh construction of the Report. However it is, actually what it says.  Those with little knowledge of the trial process, or of the rules and guidance in relation to witness statements, are given the task of drafting them.

“A statement of the best practice regarding preparation of factual witness statements

“As highlighted above, an overwhelming proportion of the participants in the survey felt that the current practice regarding the drafting of factual witness statements is problematic in several respects. This difficulty is exacerbated by the fact that the lawyers who are in charge of drafting witness statements have very little guidance as to that process. The seniority and experience of those lawyers may differ widely. Junior solicitors may be given the function of preparing first drafts of evidence when they have limited experience of the function and role of the witness statement in the trial process.”
“There is universal agreement among the members of the working group that an authoritative statement of the best practice in relation to the preparation of witness statements would be of assistance to practitioners and of utility in training and education so as to result in the production of more focused witness statements limited to their proper content.”



We have not conducted the exercise of drafting such guidance but we think it should include and build upon the following points:

(i) a witness statement should be confined to the evidence that the witness would give if properly examined-in-chief; it must be the evidence a
witness would give if asked open (non-leading) questions about his/her recollection of events by a competent advocate with an understanding of the issues in the case;
(ii) a witness statement must use the witness’s own words, based on his or her own recollection, with revisions limited to aiding brevity and clarity without changing meaning or emphasis; the evidence which a witness is able to give must in no circumstances be altered, distorted or spun in order to seek to help the case of the party calling the witness;
(iii) the content of a witness statement must be regulated by the parameters of the relevant issues and by the relevant evidential rules;
(iv) the focus of a witness statement must be on its utility to the trial judge in presenting accurately the witness’s own recollection, not as a tool for internal purposes or presentation to the other side;

(v) lawyer assistance and input into the preparation of a witness statement is useful if not essential, but must be provided with conspicuous care with the above principles in mind and conscious of the risk of corrupting memory through the process.


“We recognise, however, that compliance with the requirements will primarily be the responsibility of the legal advisers. Most factual witnesses will be less familiar with the rules and appropriate practices regarding the drafting of witness statements. They should be made aware of them, but care must be taken not to require them to certify matters outside their expertise. The statement of truth should use a form of words that confirms that the witness has had explained to them and understands the objective of a witness statement and the appropriate practice in relation to its drafting. It is important that this is not just an “add-on” at the end of the statement as the current statement of truth has become but ensures that the witness really does understand the proper parameters of a statement and has complied with them so far as within their own ability to do so.”


” It was universally recognized that specific interlocutory applications to disallow parts of witness statements were generally unattractive for both the parties and the Court. The experience of both judges and practitioners has been that such hearings involve a disproportionate amount of time and cost for the parties and take up an unjustified share of court resources, bearing in mind the need to focus closely on the detailed evidential issues in the case.”


The report noted some difficulties in imposing sanctions, but recommended that this be done, alongside judicial criticism.

” Imposing costs sanctions at the end of a trial rarely occurs, despite the frequency of non-compliant statements. Why is this? One main reason is that costs orders following trial are often not 100% orders and reflect multiple issues being decided in different directions. Percentage costs orders are common in such cases and result in a broad brush estimation of costs attributable to issues. In those circumstances it seems inconsistent with the costs exercise as a whole to adopt a precise exercise in disallowing the costs of drafting certain paragraphs of an excessively long witness statement or one which is too argumentative. Moreover when a witness has departed substantially from the evidence in his or her witness statement, it does not follow that there was anything inappropriate in the drafting, and determining whether the statement was over-lawyered for the purposes of considering a costs sanction is unlikely to be cost effective.
“However the view of the working group is that egregious cases should be singled out more frequently for judicial criticism and for costs sanctioning in order to encourage compliance in future cases. Even if the quantum of the costs sanction imposed is not substantial, the fact of such an order, coupled with judicial criticism, is likely to have a beneficial effect. “