The court commented that the CPR drew a clear distinction between factual evidence and expert evidence (which is governed and controlled by CPR 35). However, the court was more concerned that the witness statement in question did not comply with the practice direction to CPR 32, in that it did not state which of the comments in it were from the witness’s own knowledge, and which were matters of information or belief (and the source of any information or belief), and with the fact that it largely consisted of opinion evidence. Permission should have been sought from the court to rely on a new witness. In the recent case of Harlow v Aspect Contracts Ltd EWHC 1488 (TCC), the claimant objected to the production of an ‘updated witness statement’ on behalf of the defendant, on a number of grounds.įirstly, the statement was not an updated statement as such, but was rather a statement from a new witness. Fact not opinionĪ witness statement should state fact and not opinion. The court ordered the parties to provide amended statements in which the paragraphs consisting of legal argument were removed, and this had the effect of reducing the total number of pages of all the statements from about 160 to 80. The trial judge was highly critical of the parties’ approach to the witness statements and complained that ‘They were, to a substantial extent, not witness evidence, but argument.’ The case of Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others EWHC 1624 was not a personal injury or clinical negligence case, but it is worth noting the court’s comments. CPR rule 32.4(1) describes a witness statement as ‘a written statement signed by a person which contains the evidence which that person would be allowed to give orally’. The witness statement is not the place for the lawyers to lay out legal argument. The skill of drafting a witness statement is something that we are taught at university or law college, but the number of cases reported on this subject indicate that some litigators at least (probably not readers of PI Focus) may need to brush up on this skill.Ī witness statement should be in the witness’s own words and should contain relevant facts that are within their own knowledge. In any personal injury claim, the evidence of the witnesses of fact is a vital part of the case. The is article first appeared in PI Focus Magazine – November 2020 Matthew Tuff offers some tips on witness statements.
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