ON THIS BLOG NINE YEARS AGO: WITNESS STATEMENTS, WITNESS CREDIBILITY AND WITNESS SUMMARIES

Continuing with the series looking a posts from this blog from the past, here we look at posts from June 2014. This was an interesting month, the blog set out all the arguments that took place in the Denton decision. There were three posts about witness evidence which remain of interest.

 

“The courts have regularly reminded parties that the purpose of witness statements is to replace oral testimony. It is not to rehearse arguments, it is not to set out a case and whilst it necessarily has to be drafted with the collaboration of lawyers, it should not be a document created in the language of lawyers by the lawyers, because the lawyers do not go into the witness box and defend it. This is unfair to defendants, as this case showed. It is also unfair to the witnesses.”

 

WITNESS STATEMENTS ARE FOR FACTS: KNOWING THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS (AND WHY IT MATTERS)

This deals with the commonplace practice of mixing submissions about the law, commentary and (sometimes) insults in a witness statement. It looks at the rules and suggests that practitioners are best advised to comply with the rules and confine witness statements to issues of fact. (It has to be said that this guidance appears to be almost universally ignored…)

The link is here.

GIVING EVIDENCE CAN BE A GRIZZLY BUSINESS: HOW DO THE COURTS ASSESS WHOSE ACCOUNT IS CORRECT?

“The central point here (and the problematic area for the assessment of evidence for most litigators) is that the judge did not find that the witnesses for the defendant were deliberately lying. Rather they had convinced themselves that their account was the correct one.

This gives rise to one of the most difficult assessments in litigation. A client is insistent that they are not a liar and, yet, has to be given advice on the risks of litigation.   Here we have the central problem of someone believing that their recollection is true but it not being accepted by the judge.  This is one of the most difficult matters to advise on.  It is an extremely common finding in many civil cases.  Most witnesses are not dishonest but mistaken.”

The link is here.

WHEN CAN YOU SERVE WITNESS SUMMARIES? A HIGH COURT CASE ON THE QUESTION OF WHETHER A PARTY IS “UNABLE” TO OBTAIN A WITNESS STATEMENT

 

“A party applying for witness summaries to be used must be aware that:

  • The burden is on the applicant to prove that they are “unable” to obtain a statement.
  • If they serve a summary and permission to rely on a summary is later refused/overturned they may be in a position of not being able to adduce that evidence at all. Certainly permission of the court will be needed and CPR 3.9 probably brought into play.

The link is here.