Witness statements

A party in civil court proceedings often needs to rely on witness evidence as part of their case. Witness evidence is crucial to a successful outcome in nearly all court cases. Witness evidence must be submitted in the form of a witness statement.

A witness statement is a formal document that provides the court with the facts of a case. Witness statements are used in many housing and money claims, especially if the case is disputed.

Who makes a witness statement

The claimant or defendant must submit their own witness statement if they want the court to consider their account of the facts.

If a party wants to rely on the evidence of another person, that person should also submit a witness statement.

Evidence in the witness statement

A witness statement allows the court to consider evidence about the:

• background of the case

• relevant events

• steps taken to resolve the dispute

• relationship between the parties to the court proceedings

A witness statement sets out the witness’ understanding of the facts, and the events that have taken place. It contains a sworn statement from the witness about the accuracy of the contents.

A witness statement must not contain legal arguments, such as references to case law and legislation. They should be set out separately in the statement of case.

Affidavits

An affidavit is a statement in writing made under oath, sworn before someone with the authority to administer it, such as a solicitor. The Civil Procedure Rules state that an affidavit can be used in place of a witness statement, but the extra costs of an affidavit are not usually recoverable.[1]

A witness statement is used to communicate facts to the court in many types of claims and applications. It is good practice for the applicant to submit a witness statement in an application to set aside a court order or to suspend a warrant of possession.

Witness statements can also be used to tell the court about something that has happened while the case is ongoing, for example, that evidence has been sent to the other party.

The witness could be prevented from giving oral evidence at their court hearing if a statement is not submitted. If there is any doubt about whether a witness statement is needed it is usually safer to submit one.

Civil Procedure Rules

The Civil Procedure Rules sometimes provide instructions for when witness statements should be exchanged. In housing possession cases they must be filed at court and served on the other party at least two days before the hearing unless the court has made different directions.[2]

Court directions

The court can make an order giving directions to the claimant and defendant as part of its case management powers.[3] Directions often include a deadline for the parties to exchange witness statements. This is more likely to happen where there is a substantial dispute and the matter is being listed for a trial.

There are strict rules about the formatting and structure of a witness statement.[4]

The statement must be headed with the parties' names and the claim number. The heading must also contain the date the statement was made and whether it is the first statement of that witness. It must be submitted on A4 paper with a 3.5cm margin.[5] The statement must be legible. Numbers, including dates, should be expressed in figures.[6]

The court has discretion to allow a statement that is not formatted correctly.[7]

The witness statement must be written in the first person, in the witness' own words.

In the first paragraph the witness must state:

• their full name

• their residential address

• their occupation (including retired, unemployed)

• whether they are a party to the court proceedings, or an employee of a party

• the process by which the statement has been prepared

• whether the statement was made with the help of an interpreter[8]

The main part of the statement should be broken into numbered paragraphs. Each paragraph should contain one point the witness wants to make. This makes it easier for the court and the other party to ask questions and address the points in the statement.

Sources of knowledge and belief

The witness should be clear about the sources of their information, so the court can identify which statements are made from the witness' own knowledge.

The witness should also make it clear which statements are made based on a belief, and which are made based on information from a third party.

A witness can include information they have received from an adviser or a solicitor as long as the source is clear. If the witness needs to rely on information provided by a third party, details of the source should be provided.[9] The court can refuse to allow a statement if the source of information contained in it is not clear.[10]

A witness statement must contain a statement of truth.[11] It confirms the maker of the statement has an honest belief in its facts. The statement of truth must be signed by the witness and dated.

The wording of the statement of truth must follow a prescribed form, set out in Practice Direction 32.[12]

An adviser, helper, or legal representative must not write the content of the witness statement for the witness to sign. It is acceptable, and common practice, to record what the witness says and then type it up. The statement must still be in the witness' own words.

An adviser or helper can assist the witness to:

• ensure all the relevant facts are included

• put the events in a chronological order

• remove any repetitions and expletives

• separate and number the paragraphs

• format the statement so it complies with the formal requirements

An adviser or other third-party helper who has information to communicate to the court can make and submit their own witness statement.

The witness may have additional supporting documents they wish to show the court. These are called exhibits. They can be important, especially if they support part of the statement or explain where the information in it comes from. Exhibits must be referred to in the body of the statement and not simply attached without any explanation.

A common way of referencing and labelling exhibits is to use the initials of the witness followed by a numeral, for example AB1, AB2.

Witness statements must be served on the other party and filed with the court before any deadline. The same rules about service of claims apply to witness statements.[13]

Service by email is only allowed if the parties have already agreed to it.[14]

Personal service

A witness statement can be personally served on the other party by leaving it with the individual.[15] If the other party is a company, it can be left with a partner of the company or a person who holds a senior position.

Service by post

Witness statements that are served on the claimant by post must be sent to the address on the claim form.[16] Witness statements that are served on the defendant must be sent to the address provided, if any. If no address has been provided, documents can be sent to the usual or last known residence of the defendant.[17]

In a claim by a tenant against a landlord, documents can be served at an address given by the landlord when the tenancy began.[18]

Date the statement is served

Documents are deemed to have been served on the second business day after they have been posted or left with the person.[19]

File at court

As well as serving the statement on the other party, the witness statement must also be filed at court. The document is deemed to have been filed on the day it is received.[20] It is possible to file documents by fax.[21] If the fax arrives after 4pm it will be deemed to have been received on the next day the court office is open.

The court must take all proportionate measures to ensure a vulnerable witness can participate fully in court proceedings.[22]

A witness could be vulnerable because of their:

• age

• immaturity or lack of understanding

• communication or language difficulties

• physical impairment

• mental health condition or mental impairment

• relationship to the other parties in the court proceedings

• social, domestic, or cultural circumstances

A witness who has been impacted by the subject matter of the case, for example witnessing a traumatic event, could be treated as a vulnerable party.

The court can consider special measures when dealing with a vulnerable witness. This could include concealing their address and contact details.

There are specific rules for witness statements where the witness does not speak English or has limited English.

Where a witness statement is in a language other than English, the party seeking to rely on it must have it translated and file the foreign language statement with the court.[23]

The translator must sign the original statement and certify that the translation is accurate.

No provision is made in the rules for when the witness' own language is not a written language. The court dealing with the case may provide instructions for what to do if this is the case.

If a witness is unable to read, including in their own or any other language, a solicitor can sign the statement. The solicitor must certify that the witness:[24]

• had the document read to them

• understands the contents and approved them as accurate

• understands the consequences of making a false statement

• signed or made a mark in the presence of the solicitor

The wording of the solicitor's certification is set out in the Civil Procedure Rules.[25]

The witness should attend the court hearing if they can. The court is likely to give less weight to a statement if the witness does not turn up to court.

The judge or the other party can ask questions about the content of the statement, check any facts, or ask the witness to expand on something they have mentioned. It is advisable to have a copy of the witness statement available on the day, especially if some time has elapsed between the making of the statement and the court hearing.

If the witness evidence rules have not been followed, the court can use its discretion to either:

• accept the evidence, or

• dismiss the evidence

The overriding objective in the Civil Procedure Rules provides the court with powers to deal with cases justly and at proportionate cost.[26] The court can use these powers to accept a defective witness statement in some circumstances.

Application for relief from sanctions

When the court dismisses evidence in the statement due to non-compliance with the rules, the affected party can apply to court for relief from sanctions. The application is made on form N244.[27] If the court grants the application for relief from sanctions, the order that dismissed the evidence is set aside.

Applications for relief from sanctions must be made as soon as possible. A delay could lead to the court dismissing the application. The court applies a three-stage test to decide whether to grant the application.[28]

The court first considers the seriousness of the non-compliance. If it is not serious, the relief should be granted.

If the non-compliance is serious, the court must then consider why the breach occurred. A litigant in person could explain they would not have breached the rules if they had the benefit of legal advice.

Thirdly, the court should look at all the circumstances of the case. This provides the court with wide discretion to grant the application if there is a good reason to do so.

The application must include a witness statement that addresses the three stages of the test and provides an explanation for the breach.

False statements

Making a false statement in a witness statement can lead to proceedings for contempt of court, including a prison sentence.[29]

Witness statement filed on behalf of the Defendant

First witness statement of Any Tenant

7 December 2021

In the County Court hearing centre at ANY TOWN

Claim number:

Any Landlord (Claimant)

and

Any Tenant (Defendant)

I, Any Tenant, a retired joiner residing at 1 Any Street and the defendant in this matter, will say as follows. This statement is in my own words, from my own knowledge except where indicated.

1. I have made this statement in support of my defence to the possession claim brought by Any Landlord.

2. I have been assisted by my adviser at Any Town advice centre to make this statement following a telephone appointment with them on 1 December 2021.

3. I first moved into the property on...

4. I was paying my rent regularly until...

5. (Provide as much relevant background as possible, in date order from the earliest events up to the present time)

6. On 3 December 2021 my adviser told me they received a letter from the claimant, Any Landlord, which states...

7. I refer to exhibit AN1, which is a letter from the claimant to me which states...

8. I refer to exhibit AN2, a financial statement I prepared with the help of my debt adviser which shows that...

Statement of truth

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.

Signed:

Print name:

Date: