The first step to taking a witness statement is to obtain a full proof of evidence from the witness. The purpose of the proof of evidence is to obtain all the background facts and disputes between the parties relating to the matter. It is never served on the other party and remains privileged. It is usually the starting point for the full witness statement and provides an opportunity for the lawyer to assess the strength of the case. It is a key element of preparing the witness statement and should be taken as early as possible.
The witness statement must clearly state that the matters in the statement are made from the witness’s own knowledge and which matters of information or belief and the source of any matters of information or belief. When preparing a witness statement for either a hearing or trial, you need to consider:
- facts at issue;
- facts which need to be proved;
- disputes between the parties; and
- can the outstanding issues be narrowed between the parties.
When considering which facts are at issue and which facts need to be proved, the usual starting point is the statements of case submit by the parties.
A solicitor must at all times be wary of his/her professional duties and comply with the Solicitors Code of Conduct 2011. He/she should not lead the witness and any witness statement must be in the witness’s own words. No pressure should be placed on the witness prior to trial and the interviewing process, which would result in the witness providing an untruthful account of their evidence. Lawyers cannot coach there witnesses or rehearse the evidence the witness intends to give at trial.
However, a lawyer may interview the other side’s witness, advertise for a witness to come forward and give evidence and pay the witness their reasonable expenses, reasonable compensation for their loss of time and any conduct money on service of a witness summons.
If you would like any further information on any commercial litigation matter please feel free to contact Michael Coyle on firstname.lastname@example.org.