The rule has always been that the source of such evidence must be explained. Statements for interlocutory hearings are more likely to include evidence obtained from third parties. Avoid the temptation to cut and paste the same material into multiple statements, and do not simply have one witness say that he agrees with the evidence of another. If more than one witness is giving evidence of fact at the trial, it is vital to ensure that each statement is in that witness’ own words.Ensuring that statements are not venturing into providing expert opinion, for example, providing evidence on the property market ( JD Wetherspoon Plc v Harris EWHC 1088 (Ch) or accounting practice ( Michael Norcross v Estate of Christos Georgallides EWHC 2405 (Comm)).If the statement looks like someone else’s words, it is very easy to unsettle a witness by asking him or her to read a convoluted sentence out loud and then asking, “ What did you mean by that?”. It may seem an obvious point, but when drafting a witness statement for trial, ensure that the witness can explain orally everything that is written in the statement.Approaches range from the relatively moderate approach adopted by Waksman J in PCP Capital Partners LLP v Barclays Bank plc of allowing the parties to revise statements to remove extraneous material, to ICC Judge Barber’s more robust approach in Hellard v Graisley Investments Limited EWHC 2664 (Ch) of refusing to admit the offending statement as evidence at all.Ī number of practical points emerge for those who draft witness statements: There are many examples of judges criticising witness statements which fail to comply. The purpose of the witness statement is in this context is to say, so far as the witness can say what happened, what the witness says he or she did, what he or she knew or thought or believed or intended, or, the meaning or content of documents to which they were a party where they can comment properly about them and where the meaning or content of that document has been called into question. In PCP Capital Partners LLP v Barclays Bank plc (12 March 2020) Waksman J put it as follows: The starting point for any witness statement is that is the evidence of fact that the witness can give, it should be in the witness’ own words where possible, and should avoid argument, expressions of opinion, submissions about the issues and observations about the evidence of other witnesses. It ought to be noted that an inadequate statement of truth does not render the document a nullity: it will remain effective until struck out. In the short term, we are likely to see witness statements explaining how solicitors and clients have worked their way around the Covid-19 restrictions, but the requirement offers wider opportunities to strengthen the credibility of witness statements and to reduce the risks of cross examination. The foreign language witness statement should be filed with the court, translated and the translator must sign the original statement and must certify that the translation is accurate (PD 32, para 23.2). 18.1) and the statement of truth is also to be in that language (PD 22 para 2.4). In such cases, the statement must be drafted in the witness’s own language (PD 32, para.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |