Get the information you need to practice law Quickly, Easily and No Subscription Required.
What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Witness evidence - overviewWitness evidence - Code of conduct requirements
A solicitor's relationship with witnesses has to be handled carefully. When preparing witness evidence there are a number of new requirements for solicitors. These are set out in the SRA Code of Conduct, which came into force on 6 October 2011.
For more detail see Witness evidence - Code of conduct requirements.
Witness statements for specific applications
There are two distinct types of witness statement: those dealing with factual witnesses for the evidence needed to prove a case and those statements needed for a particular type of application. Even where the witness statement is for a particular type of application there are certain general points which are important to note.
For more detail see Witness statements for specific applications.
Witness statements - their status and use
Draft witness statements and affidavits are privileged unless and until this is waived. Generally, a witness statement which is put in as evidence in chief will be available for the public. Special rules apply as regards the immunity of witnesses from suit.
For more detail see Witness statements - their status and use.
Witness evidence - determining witnesses
Witness evidence will often be the key to winning a case. It is crucial to approach the process of obtaining witness evidence at a very early stage in the proceedings. The nature of the witness evidence required for trial will suggest the focus of the evidence gathering process. The starting point when deciding what witness evidence is necessary is who is able to give the best evidence to prove the case.
For more detail see Witness evidence - determining witnesses.
Witnesses - interviewing
The key to interviewing a witness is to ensure that both you and the witness are adequately prepared prior to the interview to make the best use of the time available. There are some key issues to be considered in advance.
For more detail see Preparing to interview a witness.
Once at the interview the amount of time available will be limited so you will need to ensure that you consider carefully issues such as who should attend, how documents will referred to, how to ask the questions and how to take notes.
For more detail see Witnesses-interviewing
In some cases there are other issues to consider, such as where a witness does not speak English, is unavailable or reluctant.
For more detail see Difficulties when interviewing witnesses..
Witness statements - drafting
When drafting general witness statements for factual witnesses there are a number of general drafting points to consider as well as technical requirements. The statement should be concise without omitting significant details and must also be in the witness's own words.
For more detail see Drafting witness statements - general drafting points and Drafting witness statements - technical requirements.
Documents referred to in the witness statement should be produced in exhibits to the statement. In large cases in particular how to compile exhibits can be a complex process.
For more detail see Witness statements - exhibits.
Statements of truth
Statements of truth are used to confirm that the person signing the document has an honest belief in the accuracy and content of the document being signed. The CPR sets out the exact wording that must be used. Certain documents, including statements of case and witness statements must be verified by a Statement of Truth.
The CPR also sets out who must sign the Statement of Truth, including where a solicitor may sign on behalf of his client.
Failure to sign the Statement of Truth may result in the document being struck out. A false statement could lead to contempt of court proceedings.
For more detail see Statements of truth.
The person making an affidavit is a deponent.
The CPR set out when an affidavit should be used, for example, an application for a search order. The rules also set out the technical requirements for an affidavit and cover specific situations, for example, if the deponent is overseas or is unable to speak English. Affidavits are sworn documents; a fee is payable when swearing the affidavit. Documents referred to in the affidavit are produced as an exhibit.
For more detail see Affidavits.
Witness evidence - service
A party wishing to rely on witness statements at trial will be ordered to serve them on the other parties. The court will give directions about serving and filing evidence at the case management conference. If a witness statement is not served within the time set out in the court directions the witness cannot give evidence at the trial unless the court gives permission.
For more detail see Witness evidence - service
Hearsay notices were once used commonly, particularly in trials where there was an international element. More recently their use has declined, possibly as a result of technology. In theory a party wishing to rely on hearsay evidence must give notice of this to the other parties; they may wish to make an application for permission to cross examine the witness.
For more detail on what hearsay is and the formal requirements for the use of hearsay notices see Hearsay evidence.
Where it is difficult to get a witness to attend court, to give evidence or to produce documents, a witness summons can be used. The court's permission may be required in certain circumstances. If the court grants a summons, then it will serve it on the witness, unless the party gives written notice to the court that it wishes to effect service itself. Service must be at least seven days prior to the court appearance.
For more detail see Witness summons.
Witness evidence - preparing for and giving evidence at trial
Most witnesses are nervous of giving evidence. Parties can prepare witnesses to give evidence but cannot coach them. There are various codes of conduct and case law which set out guidelines as to what is and what is not appropriate during this preparation. A witness’s evidence will only be considered by the court if the witness attends to give oral evidence or if one of the parties asks the court to consider it as hearsay evidence. The witnesses's examination will usually take the form of a very brief examination-in-chief, as a witness’s statement will stand unless the court orders otherwise, followed by cross-examination by the other side's advocate and if necessary re-examination. When giving evidence the court will consider the credibility of a witness. There are a variety of factors which may influence the court's view and it is important to ensure that your witness' evidence is regarded as truthful and accurate.
For more detail see Witness evidence - preparing for and giving evidence at trial.
To find out more about PSL Contact us or call 0207 400 2984