Evidence and disclosure - Witness statements and affidavits

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Overview

In civil litigation, presenting evidence effectively is essential. Witness statements and affidavits are fundamental documents supporting claims and defenses. This guide discusses the functions, structures, and applications of these tools, offering vital information for SQE1 FLK1 exam candidates. Understanding these documents is important as they form the basis of factual evidence and play a significant role in case strategy.

Legal Framework and Procedural Rules

Civil Procedure Rules (CPR)

The Civil Procedure Rules guide the use of witness statements and affidavits:

  • CPR 32.4: Defines a witness statement as a written document containing evidence that a person would present orally.
  • CPR 32.15: Details affidavits' requirements, including verification by a statement of truth.
  • Practice Direction 32: Offers advice on formatting and content.

Admissibility and the Civil Evidence Act 1995

The Civil Evidence Act 1995 addresses hearsay evidence in civil proceedings:

  • Section 1: Abolishes the hearsay rule, allowing such evidence.
  • Section 2: Requires notice if hearsay evidence is used.
  • Section 4: Lists factors the court considers when assessing hearsay evidence.

Witness Statements: Form, Structure, and Legal Requirements

Heading and Formal Requirements

  • Case title and number
  • Witness's full name and address
  • Statement number for multiple statements

Content and Structure

  1. Chronological sequence: Present events clearly and logically.
  2. Factual basis: Statements should rely on the witness's knowledge and memory.
  3. Fact vs. opinion: Separate factual observations from opinions.
  4. Source attribution: Identify the source for information not personally known.
  5. Exhibit references: Properly exhibit and reference documents mentioned.

Statement of Truth

The statement concludes with a signed Statement of Truth, such as:

"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."

Legal Considerations

  • The witness statement serves as evidence-in-chief at trial, reducing the need for oral testimony.
  • False statements can lead to perjury or contempt charges.

Affidavits: Distinct Features and Applications

Key Characteristics

  • Sworn document: Must be sworn before an authorized person.
  • Jurat: Ends with a jurat indicating when, where, and before whom it was sworn.
  • Exhibits: Documents should be exhibited and labeled correctly.

Typical Applications

  1. Urgent applications: Often used in injunctions.
  2. Certain statutory proceedings: Required in some legal contexts, like insolvency.
  3. Specific rules requirements: Some court rules mandate affidavits.

Legal Considerations

  • Admissibility: Subject to the same rules as witness statements for hearsay and relevance.
  • Weight: Courts may place more weight on affidavits due to their sworn nature.

Practical Applications and Strategic Considerations

Case Example: Commercial Contract Dispute

In a commercial contract dispute, witness statements are critical:

  1. Factual background: An executive outlines the negotiation process and key terms.
  2. Performance issues: An operations manager details alleged contract breaches.
  3. Financial impact: A financial controller quantifies incurred losses.

Each statement must comply with formal requirements while clearly supporting the case.

Strategic Use in Litigation

  1. Early assessment: Witness statements help evaluate case strength and guide settlements.
  2. Disclosure strategy: Statements may affect disclosure requests.
  3. Cross-examination preparation: Opposing counsel uses statements to prepare questions.
  4. Summary judgment applications: Well-crafted statements support or defend applications.

Ethical Considerations and Professional Responsibilities

Duties to the Court

  • Accuracy: Lawyers must ensure statements are truthful and not misleading.
  • Avoiding coaching: Lawyers can assist in drafting, but content must remain the witness's evidence.

Duties to Clients

  • Confidentiality: Maintain client confidentiality, especially with sensitive information.
  • Competence: Ensure statements support the client's case without breaching ethics.

Consequences of Ethical Breaches

  • Disciplinary action: Ethical violations can lead to action by the Solicitors Regulation Authority (SRA).
  • Court sanctions: Courts may impose costs or other sanctions for improper statements.

Conclusion

Skill in witness statements and affidavits is essential for SQE1 FLK1 exam success and legal practice. These documents are vital in civil litigation, requiring a thorough understanding of their form, content, and strategic use. Key points include:

  1. The role of Civil Procedure Rules and Civil Evidence Act 1995 in governing witness statements and affidavits.
  2. The distinct structures and requirements, including the importance of the Statement of Truth and jurat.
  3. Their strategic use from assessing a case to supporting summary judgments.
  4. The ethical and professional responsibilities in preparation and submission.
  5. The consequences of ignoring legal and ethical standards.

By acquiring these elements, aspiring solicitors will be well-prepared to handle the demands of civil litigation effectively and ethically.