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The Litigation Series – Week 12: Finalising And Serving Evidence – Witness Evidence

Witness statements make up an integral part of the evidence given at trial. The general rule is that any facts that need to be proved are to be proved at trial by oral evidence and at any other hearing, by evidence in writing. The function of a witness statement is to set out the evidence of the witness which is to be heard.

Why we have witness statements

A witness statement may comment on issues of liability only, whereby the focus will be on how and why the alleged negligence occurred. Alternatively, in liability admitted cases, the purpose of the witness statement may be to comment on issues of quantum and condition and prognosis. These statements will focus on how a Claimant’s injury has affected their life compared to how it was before. From issues such as ongoing pain, difficulties, care needs, financial losses, to social life and loss of confidence. Witness statements can also combine elements of both liability and quantum.

A good witness statement can be the difference between a case succeeding and failing. Claims based on factual rather than medical disputes, such as consent cases and “he said, she said” cases, can solely be determined by how credible a witness statement may be.

A good statement can also increase the overall value of a claim. For example, in child brain injury cases, claims under special damages will typically include a care claim. The Claimant’s expert in the most severe cases may recommend professional care 24 hours a day, whilst the Defendant’s expert may only allow for 16 hours of care a day. In such instances the witness statement of the child’s parents will be key to demonstrate why a higher level of care is required. This can be achieved by demonstrating in their statement the intensive input their child requires.

How to draft a witness statement

Practice Direction 32 of the Civil Procedure Rules 1998 sets out all the rules relating to the form of witness statements which includes but is not limited to, that the statement should be, as far as possible, expressed in the witness’ own words, be written in consecutively numbered paragraphs and be in an orderly and readily comprehensible manner, which is usually in chronological order. They should include the witness’ full name, address and date of birth and should be the fullest possible statement relating to the incident/injury, the events immediately following the incident/injury and the long-term effects. It should begin at the earliest point in time that the witness feels to be relevant.

A witness statement must indicate which facts are made from the witness’ own knowledge and which are made on information and belief, giving the source of the information or basis for the belief. Inadmissible and irrelevant material should not be included and the statement should be concise. It should be no longer than it is essential to convey the first-hand evidence of the witness. It is not uncommon and completely understandable that a witness may want to put every single detail in their witness statement. Whilst this can be helpful, it can also negatively impact the evidence by taking focus away from the main issues at hand. A careful balance must therefore be struck.

It is not the function of a witness statement to engage in matters of argument, to express opinion nor to make observations about the evidence of other witnesses. They should not include any commentary on the issues in the claim.

For medical negligence claims, it is important that every relevant detail possible is obtained, such as what exactly was said when you attended hospital or when you were asked to sign the consent form. This is particularly important where there are factual disputes in a claim. A typical example where this may arise are consent cases where the issues relate to whether the Claimant was properly consented for treatment/surgery. Full details of any relevant medical conditions should also be listed. Other matters contained in the statement could be as follows:

  1. The symptoms which led to you seeking medical advice;
  2. The information given by you to the medical professional;
  3. Any questions asked by the medical professional;
  4. Whether you were given details of diagnosis at that time;
  5.  The name of the medical professional who treated you and their status;
  6. Whether the treatment was explained and whether you were warned of any potential risks and the likely consequences of the treatment;
  7.  Whether you have complained to the hospital; and
  8. Whether any relevant correspondence or an apology has been received

Statement of Truth

The witness statement must contain a Statement of Truth in the following words:

“I believe that 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”

The statement of truth must be signed by the witness themselves and the statement may be inadmissible as evidence where the witness fails to verify the statement. As made clear, making a false statement can lead to proceedings for contempt of court. If there is any defect in the witness statement, such as a wrongly worded statement of truth, the court may refuse to admit it as evidence in the case.

The witness statement should always be signed by the witness and dated with the date on which the statement was prepared so that, if the witness dies prior to conclusion of the case, the evidence will still be of use evidentially.

Serving a witness statement

As witness statements contain evidence which a party intends to rely on, the court will order that they are to be disclosed and served on the other parties. Once served, the statement is no longer a privileged document.

Usually the court will order simultaneous exchange of witness statements, but it may also order one party, usually the claimant, to serve first. Where a witness statement is not served the witness will only be allowed to give evidence with the court’s permission.

If it is clear that a party will not be ready to exchange within the deadline, they should contact all other parties and seek to agree an extension. Any agreement must be recorded in writing, and if no agreement is reached an immediate application to the court should be made.

If having received the other sides’ witness statements, you and/or your solicitors object to the relevance or admissibility of any of the material contained in the statement, they would notify the other party of the objection and seek to resolve the dispute.

If further matters arise which a party wants to address after service of the witness statements, then a supplemental witness statement can be prepared. The other side should be asked to agree to the evidence being adduced and failing that, an application can be made to the court, for permission to rely on the evidence.

Given that witness statements carry so much weight, they can take quite some time to prepare. When it comes to drafting your statement, your solicitor will work closely with you to ensure all the above criteria are met.

If you have suffered injuries due to medical negligence you may be entitled to compensation. For a free initial consultation with one of our medical negligence experts please call 0808 291 3922 or request a call back online.

The author of this blog is Eleanor Atkinson, Paralegal in our Medical Negligence team.