Witness evidence — overviewGathering witness evidence

Witnesses provide factual information and so should have first hand knowledge of the facts relevant to the case. Generally, they cannot give opinion evidence although there are exceptions. Time is a major factor in getting evidence together as witnesses need to be located, interviewed and their statements written and signed off. Witnesses' expectation of the time involved needs to be managed. There is no property in a witness and therefore a witness can appear for both sides in a case; although this is exceptional. There are various codes of conduct as to how interviews with witnesses should be conducted and it is important to consider issues such as confidentiality.

Witness statements can be in witness' own language but a translation will need to be provided. Witness summaries can be provided if a witness statement cannot be obtained, for example, if a witness becomes too ill to finish the witness statement. In such cases, the court's permission is required.

Witness statements - drafting the statement

Witness statements should be concise without omitting significant details. They must also be in the witness's own words. Solicitors often play a large part in the drafting and there are various codes of practice which set out guidance for the drafting of statements. There are certain technical requirements for a witness statement and these are set out in the Civil Procedure Rules. Documents referred to in the witness statement should be produced in exhibits to the statement. If the dispute proceeds to trial, then witness statements are likely to become public documents; draft statements are privileged.

Witness statements - their status and use

Generally, once witness statements are likely to become public unless the dispute is settled, although draft witness statements and affidavits are privileged unless and until this is waived. Special rules apply as regards the immunity of witnesses from suit.

Affidavits

The person making an affidavit is a deponent.

The Civil Procedure Rules 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.

Witness evidence at hearings

A party wishing to rely on a witness statement at trial will be ordered to serve it on the other parties. 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 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. A party can serve a notice to admit on other parties in relation to facts and the authenticity of documents.

Witness summons

Where it is difficult to get a witness to attend court, to give evidence or to produce documents, a witness summons can be used. These types of summonses require a witness to attend court to give evidence or to produce documents to the court. Witness summonses are not generally used where a party simply requires a witness to produce documents. The procedure and documents required to obtain a witness summons are set out in the Civil Procedure Rules.

If the court grants a summons, then it will serve it on the witness. A party can give written notice to the court that it wishes to effect service itself. Service must be at least seven days prior to the court appearance.