Witness statements for trial in a civil case

At a trial in a court or tribunal the judge will consider documentary evidence, such as photos, letters and emails, and also the evidence of witnesses who give evidence under oath at the trial itself.

Every witness is called by one party or another and traditionally the barrister for whichever party is calling a witness will first question the witness in what is called "examination in chief". It is then the turn of the barrister representing the other side to ask the witness questions in cross-examination, following which the first barrister may ask some further questions in "re-examination".

This is still the way it is done in the criminal courts but in most civil courts and tribunals "examination in chief" is replaced by a witness statement. Some time before the trial a statement will be taken from each witness that each party is proposing to call as a witness at the trial, and the parties exchange signed witness statements by a deadline specified by the court/tribunal. The witness statements are included (together with the documentary evidence) in the trial bundle and "examination in chief" consists solely (or at least mainly) in the witness confirming that their witness statement is true, and the proceedings then proceed immediately to "cross examination" of that witness.

One advantage of using witness statements in this way is that it saves time during the trial. Traditional examination in chief involves the witness giving their recollections in response to a series of questions - the questions have to be non-leading questions so this can take some time.

A further advantage is that the barrister on the other side can see the witness's evidence in advance and can prepare in advance for cross-examination. Cross-examination requires skill and quick thinking because questions have to be varied/formulated on the spot in response to the previous answer but seeing the witness's evidence in advance allows the subjects and the initial lines of questioning to be planned in advance, which should mean that cross-examination is more efficient.

There are, however, some disadvantages with witness statements. The 2019 report of the Witness Evidence Working Group in the Business and Property Courts identified some drawbacks which have emerged since the practice was introduced. Hearing a witness give evidence can assist a judge in assessing how credible and reliable a witness's recollections are in a way which reading a statement does not do. It is true that the judge always has the opportunity to hear the witness answering questions in cross-examination but, as the Working Group points out (para 15 of the report), the way in which questions are framed in cross-examination may restrict the answers given to a binary Yes or No so that the witness is deprived of the opportunity to make a favourable impression.

There is also the problem that over the years the practice of solicitors has gradually changed so that witness statements are no longer limited to evidence in chief in written form (as they should be) but tend to include a lengthy commentary on the written evidence (para 17 of the report). One reason for this is that many solicitors who do exclusively civil work have no experience of the old system of examination in chief and therefore no instinctive "feel" for the proper scope and size of a witness statement intended to represent examination in chief (para 16 of the report).

Witness statements are likely to continue to be used in civil cases but the Working Group has made recommendations which should result in their no longer containing the kind of lengthy commentary which is not appropriate in evidence in chief. The recommendations also provide for the possibility that witnesses might be permitted to give orally some evidence contained in their witness statement.                   


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This page was lasted updated in December 2019 Disclaimer