#10335 - Witness Statements Affidavits Witness Summaries - BPC Civil Litigation

WITNESS STATEMENTS AND AFFIDAVITS

TYPES OF WRITTEN EVIDENCE

1. witness statements (WS)

2. witness summaries

   • informal document summarising evidence witness expected to give at trial

   • NOT used for interim applications

   • must obtain permission from court to use + only appropriate if practical problem in witness signing formal statement

3. affidavits

   • fee payable when sworn

   • sworn before solicitor / someone authorised to take oaths (jurat not statement of truth)

4. affirmations = secular affidavit

5. statements of case

   • must contain statement of truth

   • may be used as evidence in interim application if verified by statement of truth (PD 32 para 26.1) BUT usually need to supplement

6. application notice

   • must contain statement of truth

   • most informal (+ common) way of adducing evidence on interim application

COURT'S GENERAL POWER TO CONTROL EVIDENCE

• court may:

  • give directions as to issues on which it requires evidence, the nature of evidence required to decide them + the way evidence placed before court (r32.1(1))

  • exclude evidence that would otherwise be admissible (r32.1(2))

    • similar fact evidence

      • = witnesses all tell same story - must be telling truth (unless colluding)

      • admissible if:

1. substantially probative of issue(s) i.e. NOT only relevant to collateral matter; AND

2. no grounds why court should decline to admit

   • limit XX (r32.1(3))

   • gives court power to strike out scandalous, irrelevant or oppressive WS (used sparingly) (Sandhurst v Grosvenor)

AUTHENTICITY OF DISCLOSED DOCUMENTS

• notice to admit facts (to narrow down issues) / produce documents

  • parties deemed to admit authenticity of documents disclosed to them

  • if wish to challenge, must serve notice to prove, which must specify documents being challenged + be served by latest date for serving witness statements OR within 7 days of disclosure (whichever is later) (r32.19)

• notarial acts + instruments

  • can be received in evidence without further proof (unless contrary proved) (r32.20)

WITNESS STATEMENTS

• definition

  • = a written statement signed by a person which contains the evidence which that person would be allowed to give orally (r32.4(1)

  • formal document - must contain statement of truth

• court's power to control witness evidence

  • court may

    • give directions on witness evidence to: ID / limit issues, ID witnesses who may be called / evidence read + limit length / format of WSs (r32.2(3))

      • purpose: prevent excessive amounts of evidence

    • allow witness to give evidence via video link or any other means (r32.3)

• trial

  • general rules

    • (unless rule, PD or court order requires otherwise) any fact required to be proved by WS to be proved by public oral evidence (r32.2(1))

  • evidence in chief at trial

    • where witness called, WS = evidence in chief (EIC) (unless court otherwise orders) (r32.5(2))

      • court may order otherwise if there are allegations of serious misconduct (JN Dairies)

    • witness giving oral evidence may amplify his WS + give evidence on new matters arising since service of WS IF the court gives permission, which it will only give if there is good reason NOT to confine evidence to WS (r32.5(3), (4))

  • exchange of WSs for use at trial

    • disclosure directions in fast + multi track cases

      • court will order party to disclose WS of witnesses party intends to call:

        • 'court will order a party to serve on other parties any WS of the oral evidence which party serving intends to rely on in relation to any issues of fact to be decided at trial' (r32.4(2))

        • i.e. usually at allocation stage or CMC - court will give date by which WSs must be exchanged

    • sequential disclosure + whether to file

      • court may give directions on order the statements are to be filed in + whether or not they are to be filed (r32.4(3))

    • failure to serve

      • if fail to serve by date specified, witness CANNOT give oral evidence (unless court orders otherwise) (r32.10)

      • WS = properly served if signed (but NOT verified by statement of truth)

      • party may apply to enforce compliance / for sanctions (PD 28 para 5.1, PD 29 para 4.10)

      • court may strike out claim / defence (r3.4)

  • use at trial of WSs which have been served

    • if party has served a WS + wishes to rely on evidence of author at trial he party must call that witness (unless court orders otherwise OR he puts statement in as hearsay) (r32.5(1))

    • if party serves a WS and does NOT call witness / put WS in as hearsay any other party may put the WS in as hearsay (r32.5(5))

    • privilege

      • before disclosure, WS protected by legal professional privilege

      • by disclosing (serving) privilege waived (even if decide later NOT to call witness at trial) - hence r32.5(5)

  • XX

    • if witness gives oral evidence, may be XX on WS regardless of whether statement / part of it referred to during W's EIC

• proceedings other than trial (i.e. interim applications)

  • general rule

    • (unless rule, PD or court order requires otherwise) any fact required to be proved by WS to be proved by written evidence (r32.2(2))

    • BUT party may rely on matters in SoC / application notice (if verified by statement of truth) (r32.5(2))

  • XX

    • if evidence given in writing, any party may apply to court for permission to XX person giving evidence (r32.7(1))

    • court may order witness to attend if convinced facts seriously challenged + good reasons to justify extra expense + delay

    • if permission granted and witness does NOT attend, evidence CANNOT be used (unless court gives permission) (r32.7(2))

• availability of WSs for inspection by members of the public

  • general rule: WS standing as EIC / depositions given in evidence at trial (but NOT documents exhibited to WS - GIO Personal) is open to inspection during trial (unless court directs otherwise) (r32.13(1), r34.11(5))

  • any person may request direction that WS NOT open to inspection (32.13(2)) BUT court will NOT make a direction unless satisfied WS should NOT be open to inspection because of:

1. interests of justice

2. public interest

3. nature of expert medical evidence in WS

4. nature of confidential info (including financial)

5. need to protect interests of child / PP (r32.13(3))

   • court may exclude whole statement, words, or passages (r32.13(4))

• collateral use

  • after statement exchanged, may only be used for purpose of proceedings in which it is served UNLESS + to the extent that

1. witness gives written consent;

2. court grants permission; or

3. statement put in evidence at public hearing

• false statements

  • may bring contempt proceedings if person makes / causes to be made a false statement in document verified by statement of truth without honest belief in its truth (r32.14)

• form

  • heading

    • title of proceedings, and if several parties with same status, no need to list all: A.B (and others) (PD 32 para 17.1)

    • top right hand corner of first page: party on whose behalf made, initials and surname of wtness, number of statement for that witness, indentifying initials and numbers of exhibits, date made (PD 32 para 17.2)

  • body of witness statement

    • must if practicable be in witness's own words

    • should be in first person

    • if giving evidence in professional capacity, should give address of where works, position, name of employer

    • state occupation / description

    • should state fact he is a (employee of) party to proceedings (PD 32 para 18.1)

    • must indicate which statements are from witness's own belief and which are matters of information or belief and their source (PD 32 para 18.2)

    • connected exhibits should be verified by and ID'd by witness an remain separate from statement (PD 32 para 18.3)

    • section on exhibits applies by analogy (PD 32 para 18.5)

    • if more than one witness statement with exhibits, number exhibits continue numbering consecutively across statements (PD 32 para 18.6)

    • exhibits should run sequentially across statements

  • format

    • A4 paper, 3.5cm margin, legible and typed on one side, bound (or if not endorsed with case number, initials of deponent and person before whom sworn), paginated, numbered paragraphs, numbers and dates expressed in figures, documents referenced in margin or in bold in body of text (PD 32 para 19.1)

    • usually follows chronological sequence of events (PD 32 para 19.2)

  • statement of truth

    • definition = statement of all evidence witness would give at trial and that statement maker (or litigation friend) believes the facts stated are true (r22.1(4), (5), PD 32 para 20)

    • 'I believe that the facts state in this WS are true'

    • must be signed by the maker (r22.1(6)) + print full name

    • may be contained in document it verifies / document served separately, IDing document relates to (PD 22 para 1.5)

    • if NOT verified, court may decide inadmissible (r22.3)

    • WS = properly served if signed (but NOT verified by statement of truth)

  • alterations

    • must be initialled by maker or, if appropriate) authorised person, and if not, need permission of court to use in evidence (PD 32 para 22.1 and 22.2)

  • filing

    • if court directs affidavit to be filed must be filed in court / office or registry where action which it was or is to be used is proceeding or will proceed (PD 32 para 23.1)

  • certificate of court officer

    • attach if court orders (parts of) witness statement not open to public

• WSs which do not comport with PD 32 (defective)

  • permission to file can be obtained from a judge in court where case proceeding, and court may: refuse to admit + refuse to allow costs arising from its preparation (PD 32 para 25.1 and 25.2)

• false affidavits

  • may bring contempt proceedings if person makes / causes to be made a false statement in document verified by statement of truth without honest belief in its truth (r32.14)...