It is always the case that someone who has personal knowledge of a subject matter will know what they are trying to convey but may not do so in a manner that can be understood by others. Some people are just better at expressing themselves than others. Clarity is so important and ambiguity can lead to mistakes.
It is important to ensure clarity in both the statement of the case and witness evidence. Often, the person drafting the document may inadvertently write something ambiguous. As a result, the person endorsing it may interpret it differently, unaware that it may have a completely different meaning to others.
Examples
I have had some examples which I summarise here:-
- A recent RTA case where the statements of the Claimant and Defendant drivers, in an accident on a roundabout, failed to adequately explain where they were coming from, where they were going, which lanes each driver was in and where they say the accident happened.
- I once inherited a litigated case whereby the matter was proceeding to trial. The Claimant had delivered a stack of garage doors (that were intended to be motorised) to the Defendant’s location). The description of the accident was so vague, it was only once I actually discussed the matter with the Claimant that I understood the accident circumstances to explain how the Defendant’s employees had allegedly caused the accident.
- Particulars of Claim and witness statement did not explain what lanes the Claimant and Defendant drivers were in, did not explain where they were going and where they came from. It simply said there was a collision.
This causes significant difficulty because the advocates, the Court and the witnesses simply have no proper understanding of what that party’s case or evidence is. I have had many cases where I genuinely believe my client’s version of events, but their credibility was ruined by poorly prepared statements and pleadings.
Evidence in chief
I constantly emphasise how helpful it would be for fee earners to either observe a trial (or, if within their competency and right of audience, conduct the advocacy) because it would improve their understanding of why the content of the statement is so important.
Fee earners either forget or do not realise that the witness statement is the evidence in chief. When I am in a conference with a witness and explain why the witness statement is so important, I explain that when they watch someone giving evidence in the witness box, they usually see live evidence in chief.
“You will see the advocate say to the witness ‘tell us what you saw…… and then what happened?…… and what happened?” and so forth. The evidence is elicited and once the advocate has got the witness to say everything they need, they sit down and let their opposition cross-examine the witness (which is why you get the phrase ‘stay there any my opponent may have some questions for you’, because when evidence in chief is given live, the witness may not appreciate that the questions they are being asked is just the start of the process).
Fee earners or staff who prepare the witness statement need to consider whether it adequately explains everything that any person who had read the statement understood perfectly.
Statement of case
The parties must understand that if something is not pleaded and it becomes an important part of the material facts, then it could be fatal if not pleaded. Whilst not expected to be in the same detail as a witness statement, the facts still need to be clear even if concise.
It needs to explain why the Defendant was at fault or why the Defendant was not at fault. Simply saying “they changed lanes and there was a collision” is insufficient for the reader to understand why.
Easy method
The straightforward approach is to treat it as if a police officer is asking the client exactly what happened. Ask the open-ended question, “Where did you start your journey?”. This will allow you to build the full picture.
Get the witness to explain how they approached the accident location, where they were going, what lanes they took, and when they first saw the the other driver. Elicit every single step.
The same applies for any type of claim, EL/PL personal injury, contractual dispute, housing. The issue is that relying solely on the ‘witness questionnaire’ almost certainly will not provide the information in sufficient detail. Use that, draft a skeleton of the witness statement and then call the witness. A five-minute conversation will fill the statement with the necessary information.
Cases can be lost on the lack of information and it can lead to an outcome that could be contrary to what actually happened.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.