Being A Witness In Civil Proceedings

In civil court proceedings, evidence in support of a claim can take the form of one or more of the following types:

• Documentary
• Witnesses of Fact
• Expert

Witness evidence of fact is governed by section 32 of the Civil Procedure Rules (CPR). A witness can provide evidence orally or in writing.

Generally if you wish to rely on the written evidence of a witness, you must call them to give oral evidence.

Witness Statements

The form that a witness statement has to take is set out in Practice Direction 32, part 17 which covers

• Heading
• Body
• Format
• Exhibits

18.1 The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language

A witness statement must be verified by a statement of truth in the following terms:

‘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.’

Since 6 April 2021, new rules were introduced in the Business and Property Courts of England and Wales (Practice Direction 57AC) governing the preparation of witness statements to be used at trial

2.1 The purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement.

It introduces a Statement of Best Practice in relation to Trial Witness Statements (Appendix to Practice Direction 57AC).

Witness Summary

If you are unable to obtain a written statement from a witness of fact, you can apply under CPR 32.9 for permission from the court to serve a ‘witness summary’ instead.

A witness summary is a summary of –

(a) the evidence, if known, which would otherwise be included in a witness statement; or

(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.

Witness Summons

Whether a witness statement or witness summary has been served for a witness you or the other side intend to call, it may also require a witness summons to be issued where there are issues with them agreeing voluntarily to attend to give oral evidence and/or produce evidence to the court.

Caution should be exercised when deciding whether to witness summons someone as they could become ‘hostile’ and the oral evidence they provide at trial may then not be helpful.

On the other hand, if the witness is uncertain or prevented from attending (e.g. by an employer) then this may be a useful tool to ensure certainty of attendance.

The court’s permission to issue a witness summons is required in certain circumstances.

You have to offer/pay the witness reasonable sums to cover travelling expenses and compensation for loss of time.

If a witness fails to comply with a witness summons they could be liable for contempt of court (resulting in imprisonment or a fine), as well as wasted costs.

A witness summons cannot be used on a witness who is outside of England and Wales.

Oral Evidence

At the hearing, a witness will take the stand and swear or affirm that the evidence they give shall be the truth the whole truth and nothing but the truth.

The party who calls the witness will normally proceed first – this is known as the evidence in chief and will usually be brief, asking the witness to confirm their details and their signature on the statement. The opposing party will then cross-examine the witness.

32.11 Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement whether or not the statement or any part of it was referred to during the witness’s evidence in chief

Giving evidence in court can be very daunting, and here are some practical tips a witness may benefit from:

• be familiar with your witness statement
• take your time, speak slowly and clearly
• ask for the question to be repeated if you do not understand it or cannot hear
• stay calm and don’t panic
• answer honestly – if you cannot recall or do not know the answer, say so

Legal representatives are not permitted to prepare a witness on what they should say – this is known as coaching.

If the evidence is not completed in one sitting, a witness is not permitted to discuss the case or their evidence whilst still being under oath.

Translation and translators

English may not be the first language of a witness and as stated above at Practice Direction 32, 18.1, a witness statement must be drafted in their own language and then be officially translated.

If you are filing a witness statement in a foreign language, you will need to comply with part 23 of Practice Direction 32:

23.2 Where a witness statement is in a foreign language—

(a) the party wishing to rely on it must—

(i) have it translated; and

(ii) file the foreign language witness statement with the court; and

(b) the translator must sign the original statement and must certify that the translation is accurate.

You will then need to consider and make arrangements for a translator to attend the hearing if the witness is called to give oral evidence.

Video Conferencing

What if a witness cannot physically attend court to give oral evidence?

CPR32.3 The court may allow a witness to give evidence through a video link or by other means.

Guidance of the use of video conferencing in the civil courts is found at Annex 3 of Practice Direction 32.

Following COVID and the increased use of virtual hearings, this is more easily facilitated than before – usually by the provision of a link from the court/judge. You will need to make an application for court permission and explain why physical attendance is not possible (e.g. if you are abroad and prevented from travelling to the UK).

Hearsay Notice

If a witness is prevented from giving oral evidence even through video conference, then a party can consider an application for permission to admit ‘hearsay evidence’ under CPR 33.

33.2

(1) Where a party intends to rely on hearsay evidence at trial and either –

(a) that evidence is to be given by a witness giving oral evidence; or

(b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence;

that party complies with section 2(1)(a) of the Civil Evidence Act 19951 serving a witness statement on the other parties in accordance with the court’s order.

(2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement –

(a) inform the other parties that the witness is not being called to give oral evidence; and

(b) give the reason why the witness will not be called.

Hearsay evidence inevitable will carry less weight that live evidence as the other party is deprived of the opportunity to test the creditability of the witness and strength of the evidence by cross examination.

The opposing party can still apply to call a witness for cross-examination on hearsay evidence under CPR33.4 if they remain unconvinced about non-attendance.

Conclusion

It is a great commitment to be a witness for a party in civil proceedings and should not be embarked on lightly.

Parties have to consider carefully which witnesses of fact would be crucial to their case, what format their written evidence should take and how they would give evidence orally as a number of practical steps will need to be taken to facilitate this.

Failure to adhere to the court rules carries serious consequences for both the party and the witness.

If you would like to find out more about being a witness for a party in civil proceedings, contact our leading Dispute Resolution Solicitors now on 0808 252 5231 or request a call back.