Evidence and disclosure - Witness statements and affidavits

Learning Outcomes

This article outlines the law and procedure on witness statements and affidavits in civil litigation, including:

• The purpose, structure, mandatory contents, and formal drafting requirements for witness statements and affidavits, with reference to CPR 32 and relevant Practice Directions
• The evidential role of each document, key differences between them, and how their admissibility and weight are assessed by the court
• Procedural steps for preparing, verifying, exchanging, and serving written evidence, and the consequences of late service or non‑compliance with court directions
• The operation of hearsay rules in civil cases, including hearsay notices, applications to require a witness to attend, and strategic use of credibility challenges
• The function, form, and limitations of witness summaries where a full statement cannot be obtained, and when the court will permit their use
• Ethical and professional duties of solicitors when drafting or deploying written evidence, including avoiding coaching, improper influence, and misuse of privileged material
• The content and significance of a statement of truth and a jurat, and the differing consequences of a false witness statement and a false affidavit for both clients and practitioners
• Typical SQE1-style issues and pitfalls, enabling accurate application of CPR rules to procedural problem questions involving written evidence

SQE1 Syllabus

For SQE1, you are required to understand the evidential and procedural rules relating to written evidence in civil litigation, with a focus on the following syllabus points:

• 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
• the rules governing hearsay, including notice, cross‑examination requests, and credibility attacks
• the use and content of witness summaries where a statement cannot be obtained
• exchange deadlines, the effect of non‑compliance, and the use of statements at trial

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. Under CPR Part 32 and Practice Direction 32, evidence at trial is ordinarily proved by oral testimony; however, a witness statement is typically treated as the witness’s evidence‑in‑chief when they attend court. Affidavits remain necessary in specific contexts where sworn evidence is required by rule, order, or statute, including certain interim relief.

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. The general rule at CPR 32.2 is that facts are proved at trial by oral evidence, yet case management directions will require written statements for efficiency and proportionality, and the statement will stand as evidence‑in‑chief if the witness attends.

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

In addition, Practice Direction 32 provides detailed requirements for format and drafting:

• the statement should be in the witness’s own words and, if practicable, in their own language (PD 32 para 18.1)
• the opening should identify if the statement was prepared face‑to‑face, by telephone/video, and/or through an interpreter (PD 32 para 18.1)
• paragraphs should be numbered, dates given as figures (e.g. 16 January 2025), and exhibits referred to by identifying letters/numbers (PD 32 paras 17 and 18.4)
• where the statement is in a language other than English, the original and the translation should be filed, stating the date of translation and the translator’s details (PD 32 para 19)

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.

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.

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.

If a witness statement is not served by the deadline, the default position is that the witness cannot be called without the court’s permission (CPR 32.10). Where the maker attends, the judge will ordinarily invite confirmation that the statement is true and then treat it as evidence‑in‑chief, moving directly to cross‑examination. The court may permit amplification or limited new matters where justified (CPR 32.5(3)).

The court may allow evidence via video link or other means where proportionate and just (CPR 32.3). Parties should comply with any directions on exchange format and pagination for trial bundles; witness statements form part of the bundle and must be clearly indexed.

Exhibits

Exhibits should be identified and verified by the witness (e.g., “I refer to the email marked AB1”), and remain separate from the statement. Each exhibit must be clearly labelled, paginated, and cross‑referenced in the statement to aid trial efficiency.

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.

Under the Civil Evidence Act 1995, hearsay is admissible but its weight is for the court. If a party intends to rely on hearsay from a witness who will not be called, they must serve a hearsay notice (CPR 33.2) no later than the latest date for serving witness statements, identifying the hearsay and giving reasons why the witness will not be called. The opponent may:

• request further particulars of the hearsay (CEA 1995, s.2)
• apply within 14 days for the maker to be called for cross‑examination (CPR 33.4)
• serve a notice to attack credibility within 14 days of the hearsay notice (CPR 33.5)

In assessing weight, the court considers factors in s.4 of the Civil Evidence Act 1995, such as contemporaneity, multiple hearsay, motive to misrepresent, and whether the absence of the maker was reasonable.

Key Term: hearsay notice
A notice served under CPR 33.2 identifying hearsay evidence to be relied on where the maker will not be called, with reasons for non‑attendance.

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.

The recommended wording (PD 32 para 20.2 and PD 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.”

Unsigned or defective statements of truth may be remedied, but the court can impose sanctions or refuse reliance if injustice would result. A dishonest statement of truth exposes the maker to contempt (CPR 32.14); solicitors must not draft or file material they know to be untrue.

Witness Summaries

Where a party is required to serve a witness statement but cannot obtain one, the court may permit service of a witness summary (CPR 32.9). A summary sets out the evidence the witness is expected to give (if known), or the matters about which the party proposes to question the witness; it must include the witness’s name and address and be served within the time prescribed for witness statements.

Key Term: witness summary
A document summarising expected evidence (or topics for questioning) where a witness statement cannot be obtained, served with the court’s permission under CPR 32.9.

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.

Worked Example 1.2

A party intends to rely on a contemporaneous note written by a third person who has since moved abroad and cannot be called. What procedural steps are required to use the note as hearsay at trial?

Answer:
Serve a hearsay notice under CPR 33.2 by the witness statement deadline, identifying the note and explaining why the maker cannot be called. Be prepared to supply particulars on request (CEA s.2). The opponent may seek an order to call the maker (CPR 33.4) or serve a notice to attack credibility (CPR 33.5). The court will assess weight under CEA s.4.

Worked Example 1.3

A key contractor refuses to give a statement due to commercial sensitivities. Trial directions require statements next week. What can the party do?

Answer:
Apply (without notice if necessary) for permission to serve a witness summary under CPR 32.9, setting out known evidence or topics for questioning and the witness’s name and address. Serve the summary by the witness statement deadline and consider a witness summons to secure attendance.

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.

Practical points:

• the deponent should bring suitable identification; the authorised person must administer the oath or affirmation and endorse the jurat accordingly
• where the affidavit is in a language other than English, a translation with translator’s details should accompany it
• a solicitor should not administer the oath to themselves; the affidavit must be sworn by the witness personally

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 (CPR 32.15), and the practice directions for interim injunctions provide that urgent applications may be supported by affidavit where the court requires sworn evidence (PD 25A).

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 (distinct from contempt of court for false statements of truth).

Worked Example 1.4

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. The court retains discretion to exclude irrelevant material and to confine or strike out inadmissible opinion.

A witness statement served in time is ordinarily the witness’s evidence‑in‑chief if they attend. If a party fails to serve a statement, the witness cannot be called without permission; if served but the witness does not attend, the statement may still be adduced as hearsay (subject to notice and weight). Sworn affidavits may carry greater persuasion where the court requires oath, but the court focuses on relevance, reliability, and fairness, not mere formality.

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. Payments to witnesses must not be contingent on the nature of the evidence or the case outcome. Where using hearsay, ensure transparency through notices and avoid tactics that obstruct fair evaluation of weight. If an opponent mistakenly discloses privileged material, do not read it; return it and act consistently with professional obligations.

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. For hearsay from non‑attending witnesses, serve a hearsay notice in time and anticipate possible applications or credibility challenges. If a statement cannot be obtained, consider a witness summary and a witness summons.

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.
• Hearsay is admissible; if the maker will not be called, a hearsay notice must be served and the court will assess weight.
• Witness summaries may be used with the court’s permission where a full statement cannot be obtained.
• False statements may result in contempt of court; false affidavits may amount to perjury.
• Solicitors must not assist witnesses to mislead the court and must comply with professional duties, including avoiding improper influence and handling privileged material correctly.

Key Terms and Concepts

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