#10334 - Witnesses - BPC Civil Litigation

WITNESS STATEMENTS

Court's power to Control Evidence

General power - court may

• give directions on

  • issues on which it requires evidence

  • nature of evidence required to decide issues

  • way evidence to be placed before court

• exclude otherwise admissible evidence

• limit XX

Specific power to limit W evidence - court may

• identify or limit issues

• identify Ws who may be called

• identify Ws whose evidence is to be read

• limit length and format of WSs

• allow Ws to give evidence by video link / other means

Preparation of WSs

“WS” - signed statement by a person which contains evidence that person would be allowed to give orally.

WS should represent the W's evidence-in-chief

Formalities

Heading

• Formal heading with title

• Top right-hand corner: party on whose behalf made, initials and surname of W, identifiers for exhibits, date made

Body

• in W's own words - first person

• if professional capacity: name and address of employer, position, whether employee of party

• occupation

• indicate which statements from own belief and which are matters of information / belief + source

• number exhibits sequentially across statements

Format

• A4 – one sided

• paginated, numbered paragraphs

• numbers and dates expressed as figures

• documents referenced in margin or emboldened in body

• securely-bound – otherwise, each should bear claim no and initials of Wi.

Statement of Truth

• Must include signed statement that W believes facts stated are true.

  • Form: “I believe the facts stated in this WS are true.”

• may be contained in document it verifies or served separately

• if no statement of truth

  • WS is still properly served

  • but court may decide is inadmissible

• false statement without honest belief in truth – contempt of court and, if knowingly false, perjury

Amendments

• initialled by maker, otherwise need court's permission to use

Exchange of WSs

Court will order party to serve WS on other parties of all Ws whose oral evidence intends to rely on.

• Failure to serve within time specified in directions (allocation / CMC) – W may not be called to give oral evidence without Court's permission.

  • Other party can apply for compliance / sanctions.

  • Court may also strike out claim / defence.

  • N.B. a statement is properly served if it is signed, even if not verified by a statement of truth.

• Usually court orders simultaneous exchange, few weeks after disclosure and inspection. May order sequential disclosure.

By serving (disclosing) WS, privilege is waived, even if W not called at trial.

No obligation to disclose WSs of “Ws” not calling.

W Summaries

Summary of evidence which would have been in WS, may be:

• unsigned draft WSs, or

• indication of issues W could deal with.

If unable to obtained signed WSs before time due, may apply for permission to serve W summaries instead.

Only grant permission if party unable to obtain the relevant WSs

Summary must be served by deadline for exchange of WSs (unless Court orders otherwise)

WS as Evidence-in-Chief

Exchanged WSs stand as that W's evidence-in-chief unless Court orders otherwise.

Must call the W to give oral evidence (unless Court orders otherwise) or put WS in as hearsay.

If serve WS but don't call or put WS in as hearsay, other party may put WS in as hearsay.

Amplification

If Court considers there is a good reason not to confine the W to the contents of the WS, W may amplify evidence in statement and give evidence in relation to new matters which have arisen since the WS was served. Requires Court's permission

XX on WS at interim hearings

Must apply for permission - only granted if facts seriously challenged and good reason.

If granted court will order W to attend.

AFFIDAVITS

Require party using to pay fee.

Must use for:

• FIs

• SOs

• applications to commit for contempt

May use at any other hearing, put party using must bear costs.

Form very similar to WS, but sworn before independent person, who also prints name of affidavit.

Witness is called a deponent, and affidavit is authenticated by a jurat, which must be on the same page as the affidavit.

DEPOSITIONS

Must apply for an order if wish to use deposition evidence.

Order will be for deponent to be examined on oath before a judge / examiner of the court (experienced barrister)

Examination conducted in same way as a trial.

If deponent fails to attend / be sworn / answer Qs, examiner records. Then party using deposition evidence gets examiner to sign certificate of failure, which is used to make without notice application for order that deponent complies.

The deposition itself must be in writing.

May be given evidence, if party serves notice at least 21 days before hearing.

WITNESS EXPENSES

Must be offered / paid:

• reasonable sum to cover travel expenses

• compensation for proven loss of earnings

COLLATERAL USE OF WSs, AFFIDAVITS, DEPOSITIONS

Can only be used for purpose of proceedings in which served unless:

• W gives written consent

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