Obtaining Witness Statements

It may be advisable to obtain witness statements from people who witnessed events relevant to your case. This is important if there are relevant matters which you yourself did not witness, and it can also be important even for things you did witness, if they are disputed. 

Using an investigator to take a witness statement

You can ask a private investigator to take a witness statementGenerally you will need to tell the investigator what the case is about - e.g. a road accident, or how a piece of land was used between 1983 and 2003, so that the investigator knows what to ask the witness about. You can ask me to draft a document to be provided to the investigator explaining what the case is about and any particular areas witnesses could be asked about.

You will also need to tell the investigator the number and name of the court/tribunal case and which court or tribunal it is proceeding in so that this can be included as a heading on the witness statement like this:

CLAIM NO: PT-2017-123456


- and -    



How can I find an investigator to take a witness statement?

You can find a list of investigators at www.theabi.org.uk Investigators provide a wide range of services. Different investigators might carry out surveillance, tracing missing persons, tracing witnesses, serving legal documents (process serving), taking witness statements, and other activities. So it is important, when choosing an investigator to take a witness statement, to first contact them and ask them questions about what kind of work they specialise in - taking witness statement might just be a sideline. 

Some investigators do not take witness statements themselves but outsource this work. Whilst outsourcing is not automatically a bad idea, there is obviously a huge difference between outsourcing to a carefully chosen person who has proved themselves proficient in the past, and using an agency who will pass the work to the next person on their books who happens to be available. A large proportion of agency business is concerned with low value traffic accident claims. These are claims funded by insurance companies who, as part of their policy cover, agree to fund them, and generally the insurance company is more concerned with limiting the cost of litigation than with the result - after all if their policyholder loses the case although that means the insurance company has to pay out that is mitigated by the fact that the insurance company can charge the policyholder a higher premium on renewal. Consequently the quality of witness statements outsourced through agencies is often not high. So if an investigator outsources you need to ask some searching questions.

Taking a witness statement is a skilled activity. It is not simply writing down verbatim what the witness says because some witnesses misuse words (e.g. many people confuse effect and affect, or prescribe and proscribe) or give ambiguous references (e.g. saying that some object is to the left of a house without specifying whether it is it is to the left when looking at the house from the road or when looking at the road from the house) or may initially give an account which moves back and forwards in time and which needs to be separated out chronologically. Capturing what the witness is saying, in words which will be clear in meaning to the reader - and so not always verbatim - while retaining the witness's own words as much as possible and not introducing any unconscious "spin", is a skilled task.       

You can ask me to draft a document to be provided to the investigator explaining what the case is about and any particular questions witnesses could be asked (in addition to questions which naturally arise in clarification of what they say when being interviewed) based on what is most relevant under the civil law applicable to your case. Many private investigators have studied law or have previously worked in a law-related occupation but, even so, an investigator is not expected to know in detail the particular civil laws which may be applicable to your case.

What do I do if I do not have the contact details of a witness?

It may be that you do not have the contact details of a witness. For example, if you case is about how land you currently own was used by past owners, you may be able to find the name of a past owner from the Land Registry but not their current address. In this case you can ask the investigator to see if they can trace the witness as tracing witnesses is one of the services which most investigators provide.                                                        

Why do I need an investigator to take a statement from a witness?

Unless you have some training and experience in taking witness statements, if you yourself try to obtain a statement from a witness it may suffer from one of two problems:

  • It may be too general - just giving the witness's conclusions rather than their detailed recollections
  • It may contain an unconscious 'spin'
In order to explain more about the last point and why it matters I need first of all 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 albeit it can sometimes limit the number of witnesses who can be called by each party). 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.

This is one reason why 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 arranging for the potential witness to be asked, at an early stage, for a statement. If the statement 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 statement 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 a witness's statement 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 such a witness is not called by either party.

Now, going back to the question of why you yourself should not take witness statements: if you yourself had a question and answer session with a witness you might well get a skewed impression of what the witness's recollections actually are. For example if you described an event which both you and the witness were present at, and asked the witness whether they could confirm that their recollection is the same as yours, 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. 

Sometimes people confuse giving a statement with something like countersigning someone's passport or licence application. If someone is asked to countersign someone's passport or licence application form they may be asked (depending what the wording of the declaration is) to confirm that (as well as knowing the person applying for a certain number of years) the information the applicant has written on the form is correct as far as they know. Some of the information in the application form may be personal details about the applicant which they did not happen to know - generally they are not signing the form to say that they know all the details to be true but simply confirming that there is nothing they know or suspect to be untrue - i.e. that the details on the form are correct as far as they know. But a witness statement is not the same. It should contain just what the witness has actually seen/heard themselves.

Even if you do your best (as anyone taking a statement should) to ask non-leading questions, and not mention what you yourself remember, 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. Investigators are trained to interview witnesses and obtain their recollections without asking leading questions and, of course, an investigator will have no personal knowledge of the events the witness has seen, but it is quite difficult for an untrained person to take a statement without lapsing into asking leading questions particularly if they themselves have their own knowledge of the events they are asking about, and have a personal stake in the case.

If you yourself were to take a statement from a witness you might end up with a statement 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 sure about) or they might echo in their account the way you have worded questions when, if they had been asked neutral non-leading questions, they would have chosen other adjectives and adverbs which might put matters in a somewhat different light. Or some relevant information they remember may go unmentioned because they were not asked.

There are severe penalties for perjury - if a witness deliberately says something they actually know to be untrue, or does not believe to be true, in a witness statement or in a court/tribunal hearing - but it can happen that a witness statement, inexpertly taken, does sometimes give an incomplete account of what a witness can actually remember (without the witness intending to be misleading) and the limitations and qualifications of what the witness says in their signed statement only becomes apparent to the judge when they are cross-examined at a hearing. Judges are, of course, well aware that this can happen and, as a consequence, judges will give virtually no weight to a bare witness statement put forward at trial unless the witness attends the trial and is cross examined. 

Note: If you have, in the past, applied to the court for an interim injunction you will know that the court, when deciding whether to grant the interim injunction, reads the witness statements filed with the application and the witnesses are not cross-examined. However that is because an interim injunction is granted only as a temporary measure - for example to temporarily prevent someone cutting down mature trees, and building on their land, whilst the parties prepare for a full trial at which it will be decided whether there is an enforceable restrictive covenant preventing the work. The court reasons that if the party who claims they are free to build wins at trial, all they will have suffered by being temporarily prevented from doing so is a delay of, say 6 months, and if they have lost money as a result of the delay the other party can be ordered to compensate them. On the other hand if no temporary injunction had been granted and the work proceeded and, at trial, the covenant was held to be enforceable, it would then be too late to return the site to its former condition, complete with mature trees. So the court, at the interim application stage, makes a pragmatic decision about what should happen in the short term, based on witness statement of witnesses who are not cross-examined at the interim application hearing. But those same witnesses will be cross-examined later, at trial, when the parties rights are finally determined. At trial courts give virtually no weight to a bare witness statement put forward unless the witness attends the trial and is cross examined.      

It is counterproductive if a witness statement is not the witness's own “unspun” account because 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 signed statement you send to them for that witness, and if the statement 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 statement had more faithfully reflected the witness’s recollections, with any doubts or qualifications stated, the barrister might have advised not to call that witness but to call another witness instead. Also if you are asking a barrister to advise on the likelihood of winning, 
they will be basing their advice, in part, on the signed statements for your witnesses which you send to them so it is important that those statements faithfully reflect the witness’s recollections in order that the most accurate assessment of likelihood of success can be given. 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 and perhaps make a settlement offer.

Can I engage a solicitor, rather than an investigator, to take a statement?

It is in theory possible to engage a solicitor to take a witness statement. This is known as an "unbundled" service - i.e. the solicitor is carrying out a discrete piece of work rather than running and managing the whole case for you. 

However you may find that solicitors are reluctant to do this work. This is often because a practice has developed, among solicitors, of drafting witness statements which are not confined to the witness's recollections of events (i.e. the evidence which would have been given if the witness were being "examined in chief") but also contain extensive commentary on numerous documents, and solicitors are not in a position to introduce this commentary when engaged on an "unbundled" basis without having a greater involvement in the case.

In fact witness statements are not supposed to contain this commentary but many solicitors, who are unfamiliar with the previous practice of oral examination in chief do not have a "feel" for the proper scope of a witness statement. In fact many investigators, who are often former police officers, have a better feel for the work because of their previous experience in taking witness statement for the criminal courts where oral examination in chief is the rule.

How much contact should I have with a witness before an investigator has taken a statement from them? 

If the witness is someone known to you but who you have not had contact with for some time, you will want to check that the contact details you have for them are still correct and to briefly ask them if they would mind telling an investigator, whom you are going to engage, what they remember.

If the witness is someone unknown to you then it is usually better to leave the investigator to make the first contact with them.  

If the witness is someone you have a lot of social or business contact with then it may well be that you have already discussed some of the details of the case with them and, indeed it may be necessary to do so if they are involved with dealing with practical issues which the subject matter of the dispute has raised, but as far as possible, particularly if the litigation concerns purely historical events and there is no an ongoing situation, you should refrain from discussing the details of the case with the witness before the investigator has taken a statement from them. This is to reduce the risk of the witness becoming confused between what they themselves remember and what you have told them of your own recollections.

What if a witness is reluctant to give a statement?

Most people are happy to help in the administration of justice by telling a court or tribunal what they remember and, for that purpose, giving a statement in advance (a statement in advance is what virtually all court/tribunals require for witnesses who are to give evidence at trial). Sometimes witnesses are apprehensive simply because being a witness in court/tribunal proceedings is something they have not done before. If a witness lives a long way from the court/tribunal and is concerned about the cost of travel when the time comes to attend court/tribunal you can confirm that you will  pay their travelling expenses or, if they do not drive and public transport is inconvenient/non-existent you can offer to give them a lift to court/tribunal. If they wonder exactly what an investigator is you can explain that the role of the investigator is simply to ask the witness questions about what they remember, write down what they say in the form of a witness statement, and ask the witness to check it before signing. But if the witness refuses point blank to talk to the investigator then that is their right.   


This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.

This page was lasted updated in December 2019 Disclaimer