Obtaining Proofs of Evidence from Witnesses

A witness’s Proof of Evidence is simply everything relevant to the issues in the case which the witness can remember and write down, but the witness should write down everything they think might be relevant. It does not matter if (within reason) they include things which turn out not to be relevant, because once you have a Proof of Evidence for a witness, you will want to ask a barrister to draft a Witness Statement from it, and at that stage the barrister can leave out any material which is not relevant to the issues which, by that time, still remain in dispute between the parties (generally witness statements used in court/tribunal are expected to only contain relevant material because too much irrelevant material wastes court/tribunal time).

Some guidance on how to write a Proof of Evidence – which you should give to your potential witnesses - and also read yourself when writing your own Proof of Evidence - can be found at www.johnantell.co.uk/writing-a-proof-of-evidence

Why you should ask the witness to write what they remember in their own words

It is important to just leave the witness to type in, for themselves, what they remember rather than having a question and answer session. To explain why this is, first of all I need to give some background about the legal process and how witnesses are questioned at trial. Each party decides which witnesses they are going to call to give evidence. Every witness will be “called” by one party or the other (the court/tribunal itself does not decide to call witnesses of its own initiative). When a witness gives evidence, the first thing they are asked after taking the oath, by the barrister representing the party calling them, is to confirm that their witness statement is correct. After that the barrister representing the other side will ask questions in what is known as cross-examination. The barrister representing the other side can ask the witness virtually any relevant question and is allowed to ask “leading questions”. A “leading question” is a question which is worded in such a way as to suggest the answer expected such as “The car was blue, wasn’t it?” (rather than "what colour was the car"). When the barrister representing the other side has finished asking questions in cross-examination, the barrister for the party calling the witness can ask questions in what is known as re-examination, but the questions which that barrister is allowed to ask in re-examination are limited in two ways: the barrister can only ask questions in clarification of issues which have been raised in cross-examination and leading questions are not allowed. So if the witness had previously agreed, in cross-examination, that the car was blue, for example, the barrister asking questions in re-examination cannot ask “the car was black, wasn’t it?”  

You can see from this that the legal process is designed to test the evidence of witnesses: the barrister for the party calling a witness is limited in the questions they can ask, whereas the barrister for the other party has a free hand to put to the witness what they have been told by their client and to suggest to the witness that where the witness disagrees, the witness is mistaken.

Particularly because of this, the decision by a party whether or not to call a particular witness at trial is an important one. The court/tribunal will set a deadline some weeks before the trial, by which time the parties must exchange witness statements and it is at this stage that a final decision has to be made by a party whether or not it will call a particular potential witness at trial, because a witness statement for each witness which a party will call has to be exchanged at this point.

In order to decide whether to call a particular person as a witness, a party, obviously, first needs to find out what the potential witness’s recollections are and this is the purpose of asking the potential witness, at an early stage, to write a Proof of Evidence. If the Proof of Evidence indicates that the witness’s recollection is helpful to the party’s case (i.e. the witness’s recollection tends to support the party’s contentions on matters which are disputed between the parties) and the witness seems to be fairly sure about their memory, then, ordinarily the party would choose to call that witness.

If the Proof of Evidence indicates that the witness’s recollection tends generally to support the party’s case on matters which are disputed between the parties, but the witness is less than certain about their memory, then the decision whether to call that witness is a more difficult decision to make because the freedom of the opposing barrister to ask leading questions in cross-examination may mean that the witness, if called, ends up agreeing, at least in part, with what the other barrister is putting to them, and that may be worse for the witness-calling party’s case than if they had chosen not to call the witness at all.

Sometimes the Proof of Evidence indicates that the witness’s recollection tends to support the party on some disputed issues but tends to support the other party on some other disputed issues. In this case probably each party would prefer that the other party called the witness (in order to get the advantages of being the cross-examining party) but may not wish to risk calling the witness themselves. Sometimes this means that a potential witness is not called by either party.

Now the reason why it is important to just leave the witness to type a Proof of Evidence for themselves, rather than having a question and answer session, is that if you have a question and answer session, you may well get a skewed impression of what the witness's recollections actually are. For example if you describe an event which both you and the witness were present at, and ask if the witness can confirm that your recollection is the same as theirs, if the witness’s recollection is broadly along the same lines as yours, they may well be inclined simply to say they agree with your recollection rather than quibble about some aspect of your account. Even if you do your best to ask non-leading questions the fact that it is you asking the questions face to face may influence the witness subconsciously so that their account is spun in a way which makes them seem more certain of their recollection than they actually are.  

So if you initially have a question and answer session, rather than just leaving the witness to type up their recollections, you may end up with a Proof of Evidence which looks very supportive of your case – the witness might say in it that they recall something without expressing any uncertainty (when in fact it is something they believe to be the case but are not completely certain about) or they might echo in their account the way you have worded questions when if they have written the Proof of Evidence by themselves they would have used their own words to describe what they witnessed which might give it a different complexion. Or certain relevant information which could potentially put matters in a different light may be omitted which would have been included if they had written the Proof of Evidence by themselves in their own time. It is wrong to obtain a Proof of Evidence which is not the witnesses own “unspun” account and it would, in fact, be counter-productive to do so for a number of reasons. First, when you ask a barrister to advise whether the potential witness should be called as one of your witnesses, the barrister will be basing their advice on the Proof of Evidence you send to them for that witness, and if the Proof of Evidence presents the witness’s recollections as more supportive of your case than they actually are, or as clearer than they actually are, the barrister may advise that the witness should be called when, if the Proof of Evidence had more faithfully reflected the witness’s recollections, with any doubts or qualifications stated, the barrister might have advised otherwise. The result may be that after cross-examination the overall effect of the witness’s evidence is worse for your case than if the witness had not been called at all.

The second reason why such a Proof of Evidence would be counterproductive is that all litigation involves risk (in particular the risk of being ordered to pay the other side’s legal costs if you lose) and so it is important to have as accurate an assessment as possible of the likelihood of winning because if chances of success are relatively low, it may be prudent to reconsider options. If you ask a barrister to advise on the likelihood of success they will be basing their advice, in part, on the Proofs of Evidence for your witnesses which you send to them so it is important that those Proofs of Evidence faithfully reflect the witness’s recollections in order that the most accurate assessment of likelihood of success can be given. 

Tell the witness - in broad terms - what event or situation you are asking them to write down their recollections of

It is important to just leave the witness to type in, for themselves, what they remember, rather than initially having a question and answer session. Of course when you ask them if they will write a Proof of Evidence they need to be told on what subjects and what timescale their recollections are sought, so depending what the case is about you may need to ask them to "write down everything you remember about the recent incident" or "write down everything you remember about how the piece of land was used between 1983 and 2003" or "write down everything you can remember about the contract starting with when their salesman first made contact and including everything about the service they subsequently provided". You should also provide them with a copy of the guidance regarding layout, sequence and format here www.johnantell.co.uk/writing-a-proof-of-evidence 

A witness should write down all the information they can remember. If they have mentioned an event but given no indication when it was it is generally fine to ask them whether or not they can remember the date, even if only the approximate date. Once the witness has written the initial Proof of Evidence there is much less chance of the way you ask questions skewing the answer but you should still take care not to ask leading questions – e.g. ask “Can you remember, at least approximately, when this took place?” – do not ask “Did this happen on 5th May 2016?”.  

Consider using a private investigator

You cannot force a witness to give you a Proof of Evidence so if a witness is reluctant, don’t press them. However if a witness is willing to provide a Proof of Evidence but just isn’t very good at getting down to writing, you could engage a private investigator to take a Proof of Evidence from them. You can find a private investigator at www.theabi.org.uk The private investigator will make an appointment and interview the witness. 

If the witness does not want to attend court/tribunal

Sometimes witnesses say they are happy to provide a Proof of Evidence (and sign a witness statement) but they don’t want to give evidence at any trial. Generally a witness statement, without the live witness, does not carry much weight at trial, but it might still be worth asking them to provide a Proof of Evidence because the information it provides may help in other ways, for example by giving you a lead by which you may be able to find other evidence.     


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