Witness Statements Affidavits Witness Summaries Notes

WITNESS STATEMENTS AND AFFIDAVITS

TYPES OF WRITTEN EVIDENCE

1. witness statements (WS)

2. witness summaries

   • informal document summarising evidence witness expected to give at trial

   • NOT used for interim applications

   • must obtain permission from court to use + only appropriate if practical problem in witness signing formal statement

3. affidavits

   • fee payable when sworn

   • sworn before solicitor / someone authorised to take oaths (jurat not statement of truth)

4. affirmations = secular affidavit

5. statements of case

   • must contain statement of truth

   • may be used as evidence in interim application if verified by statement of truth (PD 32 para 26.1) BUT usually need to supplement

6. application notice

   • must contain statement of truth

   • most informal (+ common) way of adducing evidence on interim application

COURT'S GENERAL POWER TO CONTROL EVIDENCE

• court may:

  • give directions as to issues on which it requires evidence, the nature of evidence required to decide them + the way evidence placed before court (r32.1(1))

  • exclude evidence that would otherwise be admissible (r32.1(2))

    • similar fact evidence

      • = witnesses all tell same story - must be telling truth (unless colluding)

      • admissible if:

1. substantially probative of issue(s) i.e. NOT only relevant to collateral matter; AND

2. no grounds why court should decline to admit

   • limit XX (r32.1(3))

   • gives court power to strike out scandalous, irrelevant or oppressive WS (used sparingly) (Sandhurst v Grosvenor)

AUTHENTICITY OF DISCLOSED DOCUMENTS

• notice to admit facts (to narrow down issues) / produce documents

  • parties deemed to admit authenticity of documents disclosed to them

  • if wish to challenge, must serve notice to prove, which must specify documents being challenged + be served by latest date for serving witness statements OR within 7 days of disclosure (whichever is later) (r32.19)

• notarial acts + instruments

  • can be received in evidence without further proof (unless contrary proved) (r32.20)

WITNESS STATEMENTS

• definition

  • = a written statement signed by a person which contains the evidence which that person would be allowed to give orally (r32.4(1)

  • formal document - must contain statement of truth

• court's power to control witness evidence

  • court may

    • give directions on witness evidence to: ID / limit issues, ID witnesses who may be called / evidence read + limit length / format of WSs (r32.2(3))

      • purpose: prevent excessive amounts of evidence

    • allow witness to give evidence via video link or any other means (r32.3)

• trial

  • general rules

    • (unless rule, PD or court order requires otherwise) any fact required to be proved by WS to be proved by public oral evidence (r32.2(1))

  • evidence in chief at trial

    • where witness called, WS = evidence in chief (EIC) (unless court otherwise orders) (r32.5(2))

      • court may order otherwise if there are allegations of serious misconduct (JN Dairies)

    • witness giving oral evidence may amplify his WS + give evidence on new matters arising since service of WS IF the court gives permission, which it will only give if there is good reason NOT to confine evidence to WS (r32.5(3), (4))

  • exchange of WSs for use at trial

    • disclosure directions in fast + multi track cases

      • court will order party to disclose WS of witnesses party intends to call:

        • 'court will order a party to serve on other parties any WS of the oral evidence which party serving intends to rely on in relation to any issues of fact to be decided at trial' (r32.4(2))

        • i.e. usually at allocation stage or CMC - court will give date by which WSs must be exchanged

    • sequential disclosure + whether to file

      • court may give directions on order the statements are to be filed in + whether or not they are to be filed (r32.4(3))

    • failure to serve

      • if fail to serve by date specified, witness CANNOT give oral evidence (unless court orders otherwise) (r32.10)

      • WS = properly served if signed (but NOT verified by statement of truth)

      • party may apply to enforce compliance / for sanctions (PD 28 para 5.1, PD 29 para 4.10)

      • court may strike out claim / defence (r3.4)

  • use at trial of WSs which have been served

    • if party has served a WS + wishes to rely on evidence of author at trial he party must call that witness (unless court orders otherwise OR he puts statement in as hearsay) (r32.5(1))

    • if party serves a WS and does NOT call witness / put WS in as hearsay any other party may put the WS in as hearsay (r32.5(5))

    • privilege

      • before disclosure, WS protected by legal professional privilege

      • by disclosing (serving) privilege waived (even if decide later NOT to call witness at trial) - hence r32.5(5)

  • XX

    • if witness gives oral evidence, may be XX on WS regardless of whether statement / part of it referred to during W's EIC

• proceedings other than trial (i.e. interim applications)

  • general rule

    • (unless rule, PD or court order requires otherwise) any fact required to be proved by WS to be proved by written evidence (r32.2(2))

    • BUT party may rely on matters in SoC / application notice (if verified by statement of truth) (r32.5(2))

  • XX

    • if evidence given in writing, any party may apply to court for permission to XX person giving evidence (r32.7(1))

    • court may order witness to attend if convinced facts seriously challenged + good reasons to justify extra expense + delay

    • if permission granted and witness does NOT attend, evidence CANNOT be used (unless court gives permission) (r32.7(2))

• availability of WSs for inspection by members of the public

  • general rule: WS standing as EIC / depositions given in evidence at trial (but NOT documents exhibited to WS - GIO Personal) is open to inspection during trial (unless court directs otherwise) (r32.13(1), r34.11(5))

  • any person may request direction that WS NOT open to inspection (32.13(2)) BUT court will NOT make a direction unless satisfied WS should NOT be open to inspection because of:

1. interests of justice

2. public interest

3. nature of expert medical evidence in WS

4. ...

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