Guidance for drafting witness statements

Witness Statements

The requirements for a witness statement to be used at trial are set out at CPR 32.4 and in Practice Direction 32 (Evidence). The requirements are relatively few and relate primarily to the form rather than the content of the witness statement. In summary, a witness statement must:

• be headed in the prescribed manner with the title of the proceedings;
• be in the intended witness’s own words;
• be expressed in the first person;
• include the full name of the witness, his place of residence or employment, his occupation, and state whether he is party to the proceedings (or an employee of such a party); and
• meet the prescribed formatting requirements.

Practice Direction 32 states that it is usually convenient for a witness statement to follow a chronological sequence of the events or matters, and that each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

Decision in Autonomy v Lynch

The decision is part of a complex and high-profile litigation, involving allegations of fraud against former officers of Autonomy Corp Ltd. Trial was set down for March 2019 and the second defendant, Mr Hussain, was ordered to provide a witness statement for use at trial by 31 August 2018. In June 2018, Mr Hussain's solicitors indicated in correspondence to the Claimants that Mr Hussain would be serving a witness statement "limited to affirming the matters set out in his re-amended defence". The Claimants objected to that course and sought an order from the Court that a document limited to affirming the matters in Mr Hussain's defence would not constitute a valid witness statement for the purposes of the Civil Procedure Rules.

In reaching its decision, the Court gave particular attention to the requirement in CPR 32.4(2) that a witness statement is to contain the evidence which a person would be allowed to give orally. The Court noted that if a witness sought in oral evidence to say no more than that his evidence was contained in another document (such as a pleading), that would not be admitted as evidence-in-chief. Further, it would be difficult for such a statement to be in the first person as required by Practice Direction 32. On that basis, the Court was inclined to find that a witness statement which does no more than exhibit another document is not actually a witness statement within CPR32.4.

Ultimately, however, the Court found it was unnecessary to determine that point because the Court has powers under CPR 32.1(1) and CPR 32.2(3) to prescribe the form or format of witness statements. The Court is also entitled pursuant to its general case management powers to rule on the appropriateness of the degree of incorporation of material in a witness statement.

The Court found it was not appropriate to allow Mr Hussain to file a witness statement in the form proposed because he would not be allowed to give such unparticularised evidence as oral evidence-in-chief. The proposed witness statement would not give the Claimants sufficient notice of Mr Hussain's evidence. Furthermore, it was unreasonable to expect the Claimants to construct the witness statement for themselves by referring to paragraphs of Mr Hussain's defence (which ran to over 200 pages). The Court did not prohibit Mr Hussain from 'cutting-and-pasting' his defence into a witness statement, but made it clear that any lack of particularisation as a result of that approach was a matter for Mr Hussain.

Lessons for solicitors

While the facts of the case were quite specific, the decision provides some helpful guidance for solicitors who assist in the preparation of witness statements. In particular:

• Solicitors should bear in mind that a witness statement is a chronological narrative of relevant matters, told in the first person and in the witness's own words, and without inappropriate incorporation of other material or documents.
• Witness statements stand as the witness's evidence-in-chief, therefore they ought to give sufficient notice of what the witness's evidence will be and they are subject to the rules for admissibility of oral evidence.
• The Court can make such orders with respect to witness statements as it considers necessary to ensure the fair and proper conduct of the trial, including by limiting the incorporation of documents.