Witness statements in England and Wales

The purpose of a witness statement is to inform the parties and the court of evidence a party intends to rely on, often at trial, in support of their case.  It will be used by the judge at the hearing or trial, together with all other evidence, to form a judgment on what is likely to have occurred. The purpose of witness statements is not to argue the case or take the court through the documents in the case

How will it be prepared?

There are usually three steps in the preparation of a witness statement. They are initial scoping discussion, fact-finding and drafting.

Initial scoping discussion

Typically, lawyers acting for the party which has asked the witness to give evidence will get in touch with the witness to discuss the issues on which they are able to provide factual evidence. 

Fact-finding

Once the scope of the witness statement has been initially determined, the lawyers will meet or hold a call with the witness to obtain their recollection of the relevant facts.  It is important that witnesses distinguish between facts that are within their own knowledge – because they were directly involved or witnessed the event - and facts that they have been made aware of.  It may not be appropriate to include matters falling into the latter category in a witness statement, and if they are included the statement will need to explain how the witness obtained this information.

If appropriate, the lawyers may ask the witness to look at some documents that relate to the dispute or to particular issues. A careful record of any documents reviewed will need to be kept.

Depending on the complexity of the dispute, the initial fact-finding exercise could be relatively short. In some instances, it could be a longer exercise taking place over several days. It may be necessary to reconvene for a further meeting or meetings.

Draft witness statement

Following the fact-finding discussions, the lawyers will often provide to the witness a first draft of a statement, based on their notes of the witness evidence taken during those discussions. The first draft will often contain several queries for the witness to consider. 

The statement must be the witness’s account of the facts, in their words. Therefore, if anything in a draft statement is not accurate, the witness must change it. If there are any words or phrases in a draft that the witness would not use, they should remove or reword the statement to reflect how they would describe the relevant scenario or recollection.

The statement may attach some relevant documents as an exhibit.

Statement of truth

Once the witness is satisfied with their statement, they will be asked to sign a ‘statement of truth’.  This is a statement at the end of a witness statement, which states that the witness believes the facts stated in it to be true and accurate.

The standard wording of a statement of truth is: "I believe the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth".

In addition, in cases in the Business & Property Courts, and where the statement is for use at trial, witnesses are required to give a confirmation, in a prescribed form, that they understand the purpose of witness statements and their proper preparation.

Witnesses may be cross-examined in court on the content of their witness statement.  As the statement of truth expressly recognises, proceedings for contempt of court may also be brought against a person who makes a false statement in a document signed by a statement of truth without an honest belief in its truth. It is therefore essential that witnesses are entirely comfortable with the content of their witness statement.

Who will get to see the witness statement?

After a witness statement has been signed, a copy of it, along with any other witness statements, will be provided to the other party.  In the case of witness statements for trial, that other party will provide the witness statements in support of its case, usually at the same time.

After exchange of witness statements, a witness may have the opportunity of reviewing the other party’s witness statements that deal with those issues addressed in the witness’s evidence. Sometimes, it may be necessary to prepare a supplemental witness statement, for example, where corrections or clarifications are required in response to the other party's witness statements.

If the matter proceeds to trial, once a witness has given their evidence in court, based on their statement, the statement will usually be available to non-parties, such as the press, during the trial.  After trial, such non-parties would have to request court permission to access the statement.