Nicholas Nicol

Housing Barrister

One Pump Court Chambers

This seminar will cover

CPR 32 - Evidence

Unfortunately, rules, practice directions and guidance as to the content of witness statements appear to be habitually ignored by practitioners. Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included. – White Book 2019 32.4.5.

Cummings v MoJ [2013] EWHC 48 (QB), per Tugendhat J, paras 8 and 9.

The Purpose of Witness Statements

Jackson Report

2.1 reducing the length of the trial (by largely doing away with the need for anything more than short examination-in-chief);

• enabling the parties to know in advance of the trial what the factual issues are;

• enabling opposing parties to prepare in advance for cross-examination;

• encouraging the early settlement of actions;

• providing useful and relevant information to the court to enable it to adjudicate upon the case in an efficient manner.

What Should Not Be in a Witness Statement

Other Problems

• Putting the other side’s case

• Commenting extensively on the expert report

• “My solicitor advised me …” and legal privilege.

Hearsay

Hearsay evidence is generally admissible in civil proceedings under the Civil Evidence Act 1995 so lawyers don’t have to edit witness statements to remove hearsay. Under s.2(1) of the Act, a party proposing to adduce hearsay evidence in civil proceedings must give notice of their intention to do so in accordance with the rules of court found in CPR 33.

Section 4 – Civil Evidence Act 1995

Under section 4 of the Civil Evidence Act 1995, in estimating the weight (if any) to be given to such evidence, the court may have regard to the points already made above and the following:

• whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness.

• whether the original statement was made contemporaneously with the occurrence or existence of the matters stated.

• whether the evidence involves multiple hearsay.

• whether any person involved had any motive to conceal or misrepresent matters.

• whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose.

• whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.