Writing a Proof of Evidence



Someone who is to be a witness (or may be a witness) at a court or tribunal writes down in advance everything they can remember and gives it to the person who has asked them to be a witness. This is called a Proof of Evidence. 


When writing your Proof of Evidence:-


1. Write your Proof of Evidence as a Word document on your computer or other device. At the top of the page put 

PROOF OF EVIDENCE OF [Your Name]

For example, if your name is John Smith, write PROOF OF EVIDENCE OF JOHN SMITH. 

Note: You do not need to put the name of any court/tribunal nor any case number on your Proof of Evidence. This is because your Proof of Evidence itself it not submitted to the court/tribunal. What will happen, in due course, is that if you are asked to be a witness in court/tribunal, a lawyer representing the party who has asked you to write a Proof of Evidence will draft a Witness Statement from your Proof of Evidence and it is that Witness Statement, which you will sign after double-checking that it is correct, which will be used in court/tribunal. The Witness Statement will be in the format required by the particular court/tribunal rules and will contain the court/tribunal name and case number (which, by that stage, will be known). The reason for this two-stage procedure (Proof of Evidence, then Witness Statement) is explained under What Happens Next below.


2. Underneath the heading write in a series of numbered paragraphs. 

3. In the first paragraph, state:
  • Your full name 
  • full address including Postcode
  • occupation

4. In the following paragraphs 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 later on - see What Happens Next below - can always omit it from the Witness Statement when that is drafted).


5. Use short paragraphs and number the paragraphs. You still need to write down everything you remember but break it down into relatively short paragraphs.     


6. 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:

"Paul Jones built the wall in April 2010."

but explain how you know - e.g. 

"I was living next door at the time and I remember seeing Paul Jones himself building the wall in April 2010."

or

"The wall went up in April 2010. I did not actually see the work being done because at that time I normally left for work at about 7.00 am and didn't get back until about 6.30 pm but, over a period of a week or so, I noticed each day that more of the wall had been built. I don't know whether Paul Jones built it with his own hands or whether he got builders to do it."

or 
"The wall went up in April 2010. I did not actually see the work being done because at that time I normally left for work at about 7.00 am and didn't get back until about 6.30 pm but, over a period of a week or so, I noticed each day that more of the wall had been built. At the time I didn't know whether Paul Jones had built it with his own hands or whether he got builders to do it, but a few months later I got speaking to him one day when we were both putting our recycling bins out and he told me that he had built it all himself."   

or 
"The wall went up in April 2010. I did not actually see the work being done because at that time I normally left for work at about 7.00 am and didn't get back until about 6.30 pm but, over a period of a week or so, I noticed each day that more of the wall had been built. At the time I didn't know whether Paul Jones had built it with his own hands or whether he got builders to do it, but now that this current dispute has arisen I have asked Paul Jones and he has told me that he built the wall himself."   

or
"I moved into the area in June 2016 so I have no personal knowledge of events before then but I have recently obtained a Street View image from Google dated 2013 (Exhibit JJS2) and from this I can see that there was a wall in position at that time, and Paul Jones has given me a copy of an invoice from builders for building the wall, dated April 28, 2010 (Exhibit JJS3)."  


7. You can give your overall impression of a state of affairs - e.g. "Peter Jones appeared to be drunk" - but if you can remember specific details which gave you that impression - e.g. "He had difficulty keeping his balance when walking and his speech was slurred" that should be included.


8. Sometimes your impression of a state of affairs may be the result of a number of incidents over a period of time. For example you might have gained the impression that someone owned, or at least occupied, a piece of land because, over the years (a) you saw them cultivating the land, (b) you saw them locking a gate opening onto the land, (c) you asked them if they would mind if you walked your dog on their land and they said Yes, or they said No, but they didn't say it was nothing to do with them or that you would have to ask someone else. If so then you should give all this information on which your impression was based. If all you can remember is a general impression then make this clear - e.g. "my memory is that he worked very hard in his job but it is so long ago that I cannot remember what specifically gave me that impression".


9. Write what you remember in chronological order so far as you can remember. The sequence of events can be important.


10. 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.
 

11. 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 “Peter Jones 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 Peter Jones but it could have been someone else - told me that…” etc.


12. Your Proof of Evidence should contain only what you yourself remember. You cannot have a joint Proof of Evidence with someone else. Every witness should provide their own separate Proof of Evidence containing what they remember and only what they remember.


13. Sometimes people misunderstand the purpose of a Proof of Evidence. Writing a Proof of Evidence is not like countersigning someone's passport or licence application. If you are asked to countersign someone's passport or licence application form you 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 they have written on the form is correct as far as you know. Some of the information in the application form may be personal details about the applicant which you did not know - generally you are not signing the form to say that you know them all to be true but simply confirming that there is nothing you know or suspect to be untrue - i.e. that the details on the form are correct as far as you know. But a Proof of Evidence is not the same. It is wrong for the person asking you to write a Proof of Evidence to write down (or tell you) what they know and invite you to confirm in your Proof of Evidence that you agree. Your Proof of Evidence should contain just what you can remember and be written by you in your own words. You can include in your Proof of Evidence your recollections of what people have told you in the past (as long as you make it clear when you are saying what you yourself saw or heard and when you are saying what other people said to you in the past) but if the person asking you to provide a Proof of Evidence happens to mention, when asking you to write your Proof of Evidence, what they remember (they should try not to, but if they do) you should ignore that: you should only write what you remember and you must write it in your own words. The person asking you to write a Proof of Evidence will tell you what subject they are requesting you to give your recollections on. For example they may ask you to write down what you remember about a recent incident, or to write down everything you can remember about how a certain plot of land was used over a specified period of time in the past, or to write down what you remember about your dealings with a particular company, but they should not go beyond this and tell you the details of what they remember about that subject. If they do mention details of what they remember you should ignore that and only write down, in your own words, what you remember - no more and no less. Do not sign anything unless it is something written by you in your own words.    

 

14. 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 a photo marked Exhibit JJS1 which 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. 


15. 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 at 22 Acacia Avenue, was taken about 1970.


16. If you have a relevant video or audio recording, say when and where you took/recorded it and what it shows/records.


17. You should make PDF copies of other documents that you refer to, naming them with Exhibit numbers e.g. JJS6, JJS7, JJS8 etc. A series of correspondence (letter and/or emails and/or text messages) can be in a single exhibit in chronological order. 
      

18. End your Proof of Evidence with a paragraph saying "I am willing to attend court/tribunal to give evidence if necessary".

19. When you have typed your Proof of Evidence as a Word document, print it out and check it carefully and sign and date it at the bottom. Give the person who has asked you to provide a Proof of Evidence the signed copy (keep a copy yourself). It is useful if you can also email the Word document to the person who has asked you to provide the Proof of Evidence so that when the Witness Statement needs to be drafted (see below) it does not need to be completely retyped. 

What happens next     

The person who has asked you to provide the Proof of Evidence will decide whether to ask you to give evidence to the court/tribunal (civil court/tribunal cases in England generally follow an adversarial procedure which means that the court/tribunal itself does not decide which witnesses will give evidence: each party decides which witnesses they will use). 

If they would like you to give evidence they should provide you with a Witness Statement to sign. If the party engages a barrister to represent them in court/tribunal normally the barrister would draft the Witness Statement from your Proof of Evidence.

The Witness Statement will be in the format required by the rules of the particular court/tribunal and it may be shorter than your Proof of Evidence. It may be shorter because the party may wish to use you as a witness on some subject but not on another subject. For example if you are a witness to (1) the contractual terms agreed with a company, and are also a witness to (2) the way the company subsequently carried out its obligations under the contract, the party may wish to use you as a witness to (2) but not to (1) if, for example, it turns out that there is no dispute about (1) - so the court/tribunal's time should not be wasted reading evidence about it - or if the party has other witnesses to (1).

Whilst it is quite proper for a Witness Statement to only cover certain discrete subjects in this way, it is, of course important that nothing is omitted from the Witness Statement which would mean that what is left in the Witness Statement becomes misleading. For example if you remember that the road to your premises was blocked on the date a delivery was contractually due, and that you contacted the supplier to ask them to deliver the next day instead, and in fact the supplier delivered the day after that, it would be wrong for your Witness Statement to simply say that they delivered two days late without also mentioning that you had actually asked them not to deliver on the due date. If the party has engaged a barrister to draft your Witness Statement, the barrister should ensure that nothing like this is omitted which would render what remains misleading, but it is possible that in some cases the barrister might not appreciate the full significance of everything in your Proof of Evidence so you, yourself, need to check that your Witness Statement does not give a misleading impression because of what it leaves out. If you think some matter should be included to avoid it being potentially misleading, you should say so. Do not sign the Witness Statement unless you are satisfied that it contains the whole truth, about those subjects it covers, to the best of your recollection.               


Disclaimer

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 (it is designed for their own use and for them to give to witnesses who they ask to provide proofs of evidence). 


This page was lasted updated in June 2017 Disclaimer