Evidence and disclosure - Witness statements and affidavits

Learning Outcomes

After studying this article, you will be able to explain the purpose, structure, and requirements of witness statements and affidavits in civil proceedings. You will understand their evidential role, the rules governing their admissibility, and the differences between them. You will also be able to apply the relevant procedural rules and ethical duties when preparing or using these documents for SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the evidential and procedural rules relating to written evidence in civil litigation. As you revise this article, focus on:

• the purpose, structure, and content requirements for witness statements and affidavits
• the rules on admissibility and the use of written evidence in civil proceedings
• the procedural steps for preparing, serving, and using witness statements and affidavits
• the ethical and professional duties when handling written evidence

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the main difference between a witness statement and an affidavit in civil proceedings?
2. What must be included at the end of every witness statement to comply with the Civil Procedure Rules?
3. When is it necessary to use an affidavit instead of a witness statement?
4. What are the possible consequences if a witness statement contains false information?

Introduction

Written evidence is a central feature of civil litigation. Witness statements and affidavits are the primary means by which parties present factual evidence to the court. Understanding their form, content, and legal effect is essential for SQE1.

The Role of Written Evidence in Civil Litigation

In civil proceedings, most factual evidence is provided in writing before trial. The court relies on these documents to determine the facts in dispute and to assess the credibility of the parties’ cases.

Key Term: witness statement
A written statement signed by a person, containing the evidence that person would be allowed to give orally at trial.

Key Term: affidavit
A written statement of evidence made under oath or affirmation, sworn before an authorised person.

Witness Statements: Form, Content, and Use

Witness statements are the standard method for presenting a witness’s evidence-in-chief in civil cases. They must comply with strict procedural requirements.

Structure and Content

A valid witness statement must include:

• a heading with the court name, case number, and party names
• the full name, address, and occupation of the witness
• a statement of the witness’s connection to the case
• a clear, chronological account of facts within the witness’s own knowledge
• identification of any matters based on information or belief, with the source stated
• references to any exhibits, clearly marked and attached
• a statement of truth, signed and dated by the witness

Key Term: statement of truth
A declaration at the end of a document confirming that the facts stated are true, signed by the person making the statement.

Admissibility and Procedural Rules

A witness statement must be served on the other parties by the deadline set in the court’s directions. At trial, the statement stands as the witness’s evidence-in-chief unless the court orders otherwise. The witness may be cross-examined on its contents.

Key Term: evidence-in-chief
The main evidence given by a witness for the party who called them, usually provided in writing by witness statement.

Hearsay and Opinion

Generally, a witness statement should contain only facts within the witness’s direct knowledge. Hearsay is admissible in civil proceedings, but special notice requirements apply if the witness is not being called to give oral evidence.

Key Term: hearsay
A statement made outside court, relied on as evidence of the truth of what it states.

Key Term: opinion evidence
Evidence expressing a personal view or inference, rather than direct facts; generally inadmissible unless given by an expert or as a perception of facts.

Statement of Truth

Every witness statement must end with a statement of truth in the prescribed form. Making a false statement of truth may result in contempt of court proceedings.

Worked Example 1.1

A witness statement is served in a contract dispute. The witness describes what they saw and heard during negotiations, but also states, “I believe the other party never intended to perform the contract.” Is this statement compliant?

Answer: No. The statement should be limited to facts within the witness’s knowledge. The witness’s belief about the other party’s intentions is opinion and should not be included unless the witness can state the facts on which that belief is based.

Affidavits: When and How to Use

Affidavits are used when evidence must be given on oath or affirmation, or when required by a rule, order, or statute.

Formal Requirements

An affidavit must:

• be in writing and in the first person
• state the witness’s full name, address, and occupation
• be sworn or affirmed before a solicitor, commissioner for oaths, or other authorised person
• include a jurat at the end, stating when, where, and before whom it was sworn
• attach any exhibits, properly marked

Key Term: jurat
The formal statement at the end of an affidavit recording when, where, and before whom it was sworn.

Typical Uses

Affidavits are required for certain applications, such as freezing injunctions, search orders, and some statutory proceedings (e.g., bankruptcy). The court may also direct that evidence be given by affidavit.

Differences from Witness Statements

The main distinction is that affidavits are sworn under oath or affirmation, while witness statements are verified by a statement of truth. Both are written evidence, but affidavits carry the additional formality and potential penalty of perjury if false.

Worked Example 1.2

A party applies for an urgent injunction and is required to provide evidence by affidavit. What must the affidavit include?

Answer: The affidavit must set out the facts relied on, be sworn before an authorised person, and include a jurat. Any documents referred to must be attached as exhibits.

Admissibility and Weight of Written Evidence

Both witness statements and affidavits are subject to the rules of admissibility. The court may give less weight to evidence not based on direct knowledge, or to hearsay where the original maker is not called.

Exam Warning

If a witness statement or affidavit contains false information, the maker may be liable for contempt of court or perjury. Solicitors must not assist a witness to mislead the court.

Ethical and Professional Duties

Solicitors must ensure that written evidence is truthful and not misleading. They may assist witnesses in preparing statements but must not coach or influence the evidence improperly.

Revision Tip

When preparing a witness statement or affidavit, always check that each fact is within the witness’s own knowledge or, if not, that the source is clearly stated.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Written evidence in civil litigation is usually provided by witness statements or affidavits.
• Witness statements must follow strict form and content rules, including a statement of truth.
• Affidavits are sworn or affirmed before an authorised person and include a jurat.
• Witness statements are standard for evidence-in-chief; affidavits are used when required by rule or court order.
• Both documents must contain only facts within the witness’s knowledge or, if not, clearly state the source.
• False statements may result in contempt of court or perjury.
• Solicitors must not assist witnesses to mislead the court and must comply with professional duties.

Key Terms and Concepts

• witness statement
• affidavit
• statement of truth
• evidence-in-chief
• hearsay
• opinion evidence
• jurat