Someone who is to be a witness at a court or tribunal writes down everything they can remember. This is called a Proof of Evidence. Usually a lawyer acting for the party which will (or may) be calling the witness drafts a Witness Statement for the witness from the witness's Proof of Evidence.
In the case of a Land Registry Application - rather than court or tribunal proceedings - the document drafted from the witness's Proof of Evidence is called a Statement of Truth or a Statutory Declaration, rather than a Witness Statement, but in this article for brevity I use the phrase "Witness Statement" to cover either.
A Witness Statement is in a particular format as required by the court/tribunal/Land Registry rules and the lawyer will leave out of the Witness Statement material which is not relevant to the Application or litigation (in any court/tribunal case some things will turn out to be in dispute and some will turn out not to be in dispute - only the material in the Proof of Evidence relevant to the issues in dispute will be in the Witness Statement which is used in the court/tribunal). For this reason it is helpful if a witness can provide a Proof of Evidence as a Word document as well as a signed copy.
When writing your Proof of Evidence:-
1. Start with:
2. Write down everything you remember which might be relevant to the case. If in doubt whether something is relevant, include it anyway (if it turns out not to be relevant the lawyer drafting your witness statement can always omit it from the Witness Statement when that is drafted).
3. Use short paragraphs and number the paragraphs
4. Your Proof of Evidence contains what you yourself remember. You cannot have a joint Proof of Evidence with someone else. Everyone who will (or may) be giving evidence has to provide their own separate Proof of Evidence.
5. Your Proof of Evidence contains what you yourself remember seeing/hearing. You must make clear how you know things. So don't just say, for example:
so that it is clear how you know what you are saying.
6. Write what you remember in chronological order so far as possible. The sequence of events can be important.
7. Give dates for everything as best you can remember. You may know the exact date of something if it happened to coincide with a memorable event such as your birthday, or you may have documents which help you remember – for example in the case of a meeting you might have a dated note of what was discussed at the meeting, or you may have a letter or email in which the date of the meeting was arranged, or a letter or email written soon after as a consequence of the meeting. Or you may be able to remember only approximately - e.g. “June 2011”, “just before Christmas 2011” “in the summer of 2008” “in around 2007 or 2008” etc.
8. Give names if you know them. If you don’t know a name, say so. So don’t just write “I was told that…” say “John Smith told me that…” or, if you cannot remember who told you something, make that clear – “Someone – I cannot now remember who – told me that…” “Someone at the office – I cannot now remember who – told me that…” Someone at the office – I think it was Paul Jones but it could have been someone else - told me that…” etc.
9. You should make a PDF copy of every relevant photograph you have taken and give it a filename with your initials and a number – e.g. if you are John James Smith, give the first photo a filename of JJS1, JJS2 for the second etc. Then say in your Proof of Evidence that you took the photo and when, and what it is a photo of - e.g. "I refer to Exhibit JJS1 which is a photo I took of the garden on 15/9/2016". If there is a specific point you want to make about what the photo shows, make the point, but you should always say when you took every relevant photo even if you feel that the photo speaks for itself so that no further comment needs to be made about that particular photo. If you need to exhibit a marked copy of a photo to point something out, always make a PDF copy and mark up the copy, keeping the original safe and separate. When you mark up a copy of a photo, give the marked copy one PDF name – e.g. JJS4 and provide an unmarked PDF copy as well – e.g. JJS3. If you didn't actually press the camera button but you still took the photo in the sense that you asked someone else to take it, and were present when they took it, make that clear.
10. If you have relevant photos which you didn't take and the person who took them is not going to be a witness you should say what you know about the photo - e.g. "When my mother died in 2005 I inherited a number of photos one of which is Exhibit JJS5. I recognise the girl in the picture as my sister Lucy, born in 1960, and she looks about 10 years old in the photo so I know that this photo, which shows the garden wall in dispute in this case, was taken about 1970.
11. If you refer to a photo which is in the report of an expert witness (e.g. surveyor) you can identify it using the reference in the report - e.g. "I refer to photograph 18 in Appendix A of the report of Mr Hooper dated 23/5/2015..." and you don't need to make an Exhibit (unless, of course, you need to create a PDF copy to mark up to show some point - see paragraph 9 above)
12. If you have a relevant video or audio recording, say when and where you took/recorded it and what it shows/records.
13. You should make PDF copies of other key documents that you refer to, naming them with Exhibit numbers e.g. JJS6, JJS7, JJS8 etc.
14. If the case involves a lot of correspondence - letters and emails (or a lot of, say, bank transactions shown on bank statements) then you do not need to create Exhibits for them all and you can just refer to items by date (or date and time in the case of emails) and sender/recipient name - e.g. "The reason why I sent the email to Phillip Jones at 15.20 on 13/8/2014 was..." If there could be any doubt about what letter you are referring to - e.g. if you received a letter which bears no date - you should create a PDF copy and refer to that - e.g. "I refer to Exhibit JJS9 which is an undated letter I received in response..." but generally you do not need to create Exhibits where there is a lot of correspondence. If it turns out that, exceptionally, Exhibits are required (e.g. because it is not the kind of proceedings where there will be an agreed trial bundle) then the lawyer settling the witness statement should ask you to do this.
15. End your Proof of Evidence by saying "I am willing to attend court/tribunal to give evidence if necessary".
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