Useful tips on witness statements

In personal injury claims, evidence from witnesses of fact can play an important role in establishing what happened and understanding the circumstances of a case.

A witness statement should contain relevant facts within the witness’s own knowledge. It should reflect their account, using their own words wherever practicable, rather than presenting the solicitor’s interpretation of events.

Rule 32.4(1) of the Civil Procedure Rules (CPR) defines a witness statement as a written statement, signed by a person, containing evidence that they would be permitted to give orally.

This distinction matters. A witness statement is intended to provide evidence, not to give lawyers another opportunity to present legal arguments.

The importance of this was demonstrated in Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others [2020] EWHC 1624.

Although this was not a personal injury or clinical negligence case, the court strongly criticised the parties’ approach to witness evidence. The statements contained substantial amounts of legal argument rather than factual evidence.

The court ordered amended statements to remove the argumentative material. As a result, the combined length of the statements fell from approximately 160 pages to 80.

The case illustrates why witness statements should focus on relevant evidence rather than arguments that belong elsewhere in the proceedings.

One of the most important principles when preparing a witness statement is distinguishing factual evidence from opinion.

A witness should explain what they personally saw, heard or experienced. They should not generally offer expert conclusions on matters outside their knowledge or expertise.

This distinction was central to Harlow v Aspect Contracts Ltd [2020] EWHC 1488 (TCC).

The claimant objected to an updated witness statement submitted on behalf of the defendant. One concern was that the statement came from a new witness, rather than providing an update from an existing witness, and permission should have been sought from the court.

However, the court was particularly concerned about the statement’s failure to comply with Practice Direction 32 and its extensive use of opinion evidence.

The statement did not adequately distinguish between matters within the witness’s own knowledge and information or beliefs obtained from other sources.

The court emphasised the distinction between factual evidence under CPR Part 32 and expert evidence governed by CPR Part 35.

The entire witness statement was ruled inadmissible, meaning it could not be used as evidence in the proceedings.

Not every statement involving an element of opinion is automatically excluded.

Section 3(2) of the Civil Evidence Act 1972 allows certain opinions from non-expert witnesses where they help communicate facts that the witness personally perceived.

For example, a witness might say that a driver appeared to be travelling above the speed limit, even though they could not measure the vehicle’s speed.

Similarly, a witness might describe a pedestrian as appearing drunk without having medical evidence to confirm intoxication.

The important distinction is that these observations are based on what the witness personally perceived.

A vague statement that a workplace was dangerous, however, is unlikely to provide the same evidential value without supporting detail.

A more useful statement would explain the conditions the witness observed, such as:

• Machinery without guards

• Walkways obstructed by objects or equipment

• Workers receiving no training or instructions

• Protective equipment not being provided

These details allow the court to consider the factual circumstances rather than relying on an unsupported conclusion.

A witness must be satisfied that their statement accurately reflects their evidence.

Before a statement is finalised, the witness should carefully review its contents and identify anything that is incorrect, incomplete or inconsistent with their recollection.

Solicitors should also keep a record confirming that the witness has checked and approved the statement. This might include correspondence, an email or an attendance note recording the conversation.

This is particularly important because witnesses have, in some cases, challenged the accuracy of their own statements during a trial.

Such disagreements can create serious difficulties for the solicitor responsible for preparing the evidence.

The importance of obtaining a witness’s approval was highlighted in the Solicitors Disciplinary Tribunal proceedings in SRA v Gilfillan [2020].

The solicitor was found to have committed several breaches of professional principles while managing a personal injury claim.

The misconduct included forging a client’s signature on a List of Documents and serving a witness statement that the client had not approved.

The statement contained inaccuracies that the client had previously identified and asked the solicitor to correct.

The Solicitors Disciplinary Tribunal ultimately struck the solicitor off the roll.

This case demonstrates the seriousness of failing to ensure that a witness statement accurately reflects the witness’s evidence and has their approval.

In some personal injury claims, several witnesses may provide evidence about the same issue.

For example, witnesses might describe a claimant’s professional abilities, employment prospects or the career opportunities they may have had if an accident had not affected their working life.

Evidence from different witnesses can help support a particular point. However, there are limits to how much repeated evidence is useful.

In Donald Maclennan v Morgan Sindell [2014] WLR 2462, the claimant sought to rely on 43 witnesses concerning loss of earnings.

The court recognised that evidence from several witnesses could add weight to a particular proposition, especially where each witness had a different perspective.

However, the judge also identified duplication within the statements and limited the claimant to 28 witnesses on loss of earnings, in addition to the claimant and his wife.

The case illustrates the importance of considering both the relevance and the overall value of witness evidence.

Statements from different witnesses should reflect their individual recollections.

When several statements contain almost identical wording, questions may arise about whether they genuinely represent independent accounts.

This issue arose in Dr Jones Yeovil Limited v the Stepping Stone Group Limited [2020] EWHC 2308 (TCC).

The court expressed concerns about the reliability of evidence from two witnesses whose statements were materially identical, including shared typographical errors.

Questions arose about how the statements had been prepared and how closely they reflected each witness’s own recollection.

The case highlights why using identical or heavily standardised wording across multiple statements can undermine confidence in the evidence.

A witness statement should preserve the individual witness’s account, even where their evidence supports the same overall point as another witness.

A witness statement should be easy to follow and should present the witness’s account in a logical order.

Using headings can help organise the evidence and make the statement easier to read.

Statements should also avoid unnecessary legal jargon. Terms such as ‘peruse’ or ‘special damages’ may be familiar to solicitors but are unlikely to reflect the natural language of most witnesses.

The aim is to record the witness’s evidence accurately, not to make their account sound more legally sophisticated.

A statement of truth is an important part of a witness statement. It confirms the witness’s belief that the facts contained in their statement are true.

Changes to the Civil Procedure Rules, which took effect on 6 April 2020, included revised wording for statements of truth.

The wording set out in Practice Direction 22 is:

“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.”

The wording makes clear the seriousness of providing false information in a document verified by a statement of truth.

The witness statement should also be made in the witness’s own language.

The date recorded in the statement of truth should be the date on which the witness actually signed the statement.

These requirements reinforce the importance of ensuring that the witness understands and agrees with the evidence they are providing.

Witness statements can be an important part of presenting a personal injury case. Their value depends on the accuracy, relevance and reliability of the evidence they contain.

A carefully prepared statement should explain what the witness knows, distinguish facts from opinion and comply with the applicable procedural requirements.

It should also reflect the witness’s own recollection, rather than legal arguments or wording that does not accurately represent their account.

For solicitors preparing personal injury evidence, careful drafting, checking and approval are essential. These steps help ensure that the court receives clear and reliable evidence and reduce the risk of problems arising later in proceedings.

If you need specialist guidance on witness evidence in a personal injury or major trauma claim, Fletchers Solicitors can help you understand the legal issues involved.