Witness evidence is vital in civil litigation, as it constitutes the witness’s evidence in chief. If it is incorrect, it’s essentially the same as the witness being in the witness box and failing to comply with CPR Part 32, which governs witness statements to ensure they are accurate, truthful, and procedurally sound.
For those involved in litigation, preparing these statements precisely is crucial for maintaining case credibility and ensuring fairness. Poorly drafted or non-compliant statements can lead to adverse inferences, evidence exclusion, wasted costs, or worse, findings of fundamental dishonesty or contempt of court.
A proper understanding and application of CPR Part 32 are essential for practitioners to safeguard clients and uphold justice. More importantly, there are steps that can be taken to ensure the witness statements are accurate and the witness’ best evidence.
Recently, I became aware of a case involving a poor witness statement and its consequences. In a Fast Track trial, including a personal injury claim where a finding of fundamental dishonesty could be disastrous for the Claimant, the Judge deemed the witness statement fundamentally inadequate, with numerous issues and contradictions.
On this occasion, the judge chose to overlook these issues, attributing them to the fee earner’s poor litigation. As a result, the judge ruled in favour of the Claimant, but declined to award costs, apart from the disbursements and trial advocacy fee.
This Claimant was lucky; others would not be so fortunate due to the statement being endorsed by a statement of truth.
Before I move on, if you haven’t guessed, the image is AI-generated. If you can see what is wrong with the client, you’ll see why, for my own amusement, I didn’t ask the AI generator to fix it.
Avoid leading questions when preparing the statement
The art form of non-leading examination in chief (and re-examination) is being able to guide the witness on the appropriate path and eliciting the answers to the question, without the witness (mostly due to not appreciating the purpose of the question) going off on a tangent. Such an example is seen in the 1957 film ‘Brothers In Law’ where a young Richard Attenborough plays a Barrister (Hernry Marshall) attempting to elicit evidence in chief from his client in her divorce claim:-
Mr Marshall: Mrs. Potter, did your husband ever hit you?
Judge: One moment. Please don’t lead on essential matters.
Mr Marshall: As your lordship pleases. Mrs. Potter, did he or did he not hit you?
Mr Marshall: Really, Mr. Marshall, that’s just as bad.
Mr. Marshall: Very well, my lord. Mrs. Potter, how often did these assaults take place?
Judge : Mr. Marshall! That’s not only a leading question, it is a double question and in my view a most improper one. The witness has not yet said that her husband hit her.
Mr. Marshall: Well, madam, did he hit you?
Judge : Mr. Marshall, there must be some limit to this.
Mr. Marshall: Your lordship tells me to ask a question and then when I do, your lordship complains.
Judge : That’s a most improper observation.
Mr. Marshall: Very well, my lord, I apologise.
Judge : Well, let me suggest that you ask the witness how her husband treated her.
Mr. Marshall: Thank you, my lord. Mrs. Potter, how did your husband treat you?
Mrs. Potter: Like a slave.
Mr. Marshall: Yes?… in what way?
Mrs. Potter: Well, in every way.
Mr. Marshall: Well, uh, could you enumerate some of those ways?
Mrs. Potter: Enumer what?
Mr. Marshall: Give some examples?
Mrs. Potter: It was always happening.
Mr. Marshall: What was?
Mrs. Potter: Him treating me like that.
Mr. Marshall: Like what? How did he treat you?
Mrs. Potter: Something terrible.
Mr. Marshall: We weren’t there, Mrs. Potter. You must tell us about it.
Mrs. Potter: Well, it was going on all the time.
Mr. Marshall: What was?
Mrs. Potter: What he did.
Mr. Marshall: Just tell us one thing he did.
Mrs. Potter: So many.
Mr. Marshall: It should be easy to think of one. Can you not tell his lordship one simple thing your husband did?
Mrs. Potter: …Well, there was that time at Christmas.
Mr. Marshall: Yes?
Mrs. Potter: …or was it at Easter?
Mr. Marshall: Well, what happened at Easter then, Mrs. Potter?
Mrs. Potter: Well… what was you saying again?
Mr. Marshall: Something happened at Easter.
Mrs. Potter: Well, I don’t think I’d like to tell the judge that.
Developing a method to gather information from witnesses effectively when preparing a witness statement requires a certain skill. However, approaching it in the same way as an advocate conducting an examination in chief will genuinely capture the witness’s own words from their own knowledge.
This approach helps prevent the issue where a witness’s statement contains only what they don’t truly know, which might be someone else’s interpretation of the facts. When challenged during cross-examination, this discrepancy becomes clear and can undermine the witness’s credibility.
Questions being asked of a witness with the appropriate need to interject and guide the witness down the correct path will always elicit good clear and concise evidence in that witnesses own words.
The best (albeit not most practical) approach is to have a live interview
Building on my previous point, a better witness statement is created if someone speaks directly to the witness rather than relying on a standardised (or even personalised) questionnaire. The responses might lack specificity, be poorly interpreted, and often the drafter of the witness statement will record their interpretation of what was written. There is no chance to ask for clarification on points or to include additional questions that could improve the response.
I appreciate that, with high-volume litigation, this is almost an unlikely option, especially in a small claims track venue where costs are essentially nonexistent.
Capture your client’s evidence in their own words
Whilst I touched on this previously, it is so important. A red flag that a witness statement is not in the witness’ own words is when the witness does not understand the content. Those who are a fan of the TV show ‘Friends’ will know the following when Joey uses a thesaurus in his letter to an adoption agency on behalf of Chandler and Monica:-
Monica: Alright, what was this sentence originally? (shows the sentence to Joey)
Joey: Oh, ‘They are warm, nice, people with big hearts’.
Chandler: And that became ‘they are humid prepossessing Homo Sapiens with full sized aortic pumps…?
Joey: Yeah, yeah and hey, I really mean it, dude.
Monica: Hey Joey, I don’t think we can use this.
Joey: Why not?
Monica: Well, because you signed it baby kangaroo Tribbiani
If the witness does not understand what is said in their own witness statement, it is very unlikely to be their own evidence. It adds further doubt as to whether the Court accept the Claimant’s evidence.
Make sure they can actually read their own witness statement
I will put my hand up and accept that I had an issue with this once. When I was employed fee earner, my assistant called the Claimant and took his evidence, prepared a witness statement.
That witness statement was sent to the Claimant with a covering letter explaining the importance of the statement being correct and a clear explanation of fundamental dishonesty with the consequences. The Claimant signed the statement and returned it.
It was a month before the trial that the client asked if someone would be able to read things to him as he could not read. This was a fault on my part that I did not check that he able to.
His statement was invalid because he endorsed something he could not read. However, my opposite was very helpful in that she allowed me to take the steps to retrosepctively remedy,.
CPR 22.1(9) sets out what needs to be done to ensure someone who cannot read the statement (other than language alone) can endorse their witness statement.
(9) Where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document other than by reason of language alone—
(a) it must contain a certificate made by an authorised person (who is able to administer oaths and take affidavits but need not be independent of the parties or their representatives); and
(b) the authorised person must certify that—
(i) the document has been read to the person approving it;
(ii) that person appeared to understand it and approved its content as accurate;
(iii) the declaration of truth has been read to that person;
(iv) that person appeared to understand the declaration and the consequences of making a false declaration; and
(v) that person signed or made their mark in the presence of the authorised person.
Although this point may not be the most ideal statement, it guarantees that (a) it’s the witness’s evidence, and (b) reading it aloud often allows the witness to catch an error and correct it.
Make sure continuity occurs not just within the contents of the witness statement.
It’s also crucial that consistency isn’t limited to the facts and content within the witness statement, but extends to all other evidence. Any inconsistencies with objective evidence can erode the witness’s credibility. For instance, photographs and plans might contradict the witness’s evidence. By cross-checking evidence and asking the witness non-leading questions, we can hopefully gather the necessary evidence or identify potential issues that may arise at trial.
Concluding remarks
While I understand that for high-volume litigation cases with limited or no recoverable legal costs, my recommended approaches may not always be practical, there are ways to make them work. For instance, having dedicated assistants who can use this opportunity to develop skills that can be applied if they choose to become fee earners could help streamline the process.
It is, however, one of the most important pieces of evidence in a party’s arsenal for litigation, and it should be crafted correctly so as not to prejudice the client’s claim.
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.