Witness & expert evidence

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Overview

Whether you are a Claimant or Defendant in legal proceedings – unless the case settles, there will come a time when you need to prepare your evidence in the claim. As a Court “comes as a stranger to such matters” then justice can only be reached in civil proceedings by reliance on the evidence provided in support of the claim or defence.

Such evidence can comprise evidence as to the events subject to the claim, whether that evidence be in the form of

• documents,
• witness testimonies or
• independent evidence from individuals who are experts in their field and who can, with the court’s consent, comment on technical matters which require clarification (for example a property or business valuation). 

The presentation of evidence is critically important to both claimants and defendants.  The Court is fully aware of the need for witness testimony and documents in support to be consistent and contemporaneous with the events that happened. Any indication that documents are incorrect or don’t back up one person’s statement as to what went on can fatally weaken the claim.

Witness evidence

The rules relating to the form and content of witness evidence are set out in Part 32 of the Civil Procedure Rules.

Evidence comes in various forms but in summary the two principal sources of information (or evidence) to assist a Court in deciding a case are

• documentary / physical evidence and
• evidence from parties who have direct evidence of the events subject to the dispute (i.e. witnesses).

Witness statements & Affidavits

A witness provides evidence in formal written documents – called either an affidavit or a witness statement. An affidavit is made under an oath and a witness statement signed with a statement of truth. 

• The form of a witness statement is set out in Part 32.8 of the Civil Procedure Rules.
• The form of an affidavit is set out in Part 32.15 of the Civil Procedure Rules.

Attendance at trial

If the case does not settle and goes to a full trial, a witness must attend trial to be asked questions on evidence, usually by a barrister.  This is commonly known as cross examination – where the opponents barrister asks (often difficult) questions about what the witness has put in their witness statement.

Witnesses are most commonly those directly involved in the claim itself but can also include third parties who provide a more objective observation of what occurred.

It is vital to properly prepare your witness evidence and the documents in support. Failure to properly prepare can result in

• losing the claim at trial
• having to pay the opponent’s legal costs.

Misrepresenting facts, or indeed lying within witness evidence is known as perjury and a person can be sent to prison for what is known as contempt of the Court. It is vital therefore that what is written in a witness statement and what is said in court is true to the best of the persons knowledge and belief.

Documentary evidence can often be more reliable but can on occasions be falsified.  Again, should a witness tamper with documents and falsify them, it can also lead to a prison sentence.

Expert evidence

Expert evidence is dealt with in Part 35 of the Civil Procedure Rules.

Conventionally in litigation proceedings, evidence is usually filed by a witness of fact – i.e. a witness who had direct knowledge of the underlying matters or some aspect of the events leading up to the claim being made.   

Sometimes however, a case needs more than this – it will require evidence from professionals with a particular specialism. This is referred to as expert evidence.  The type of evidence needed depends very much on the particular case in court. For example it could be

• evidence about a business valuation,
• an opinion on legal rules governing a specific area (for example financial services); or
•  as is often the case, opinions on valuation or build quality (as often arise in construction disputes).

Whatever the nature of your dispute – there is likely to be someone qualified to give an expert opinion if required. At FWJ we have access to a wide range of experts and are able to help.

Expert evidence is particularly powerful but limited.  The expert has no stake in the proceedings, comes as a stranger to these events and is asked merely to provide their opinion on a narrow aspect of the dispute. 

• in commercial litigation proceedings an expert will usually provide a report to the Court and will also be examined on their evidence.  Expert evidence is also a frequently used tool in arbitration proceedings.
• permission to rely on expert evidence must be sought from the Court – as stated above it is not admissible without the Court determining whether the additional costs and time impact on the proceedings is a necessary requirement to make a judgment on a claim.

Often there may be an expert providing evidence for both or all sides to the dispute, and ultimately, as with witnesses of fact, the Court may have to determine which expert it believes.

Importance of recollection – changes to the rules regarding witness statements

Evidence from a witness of fact, be that the claimant, defendant or a third party, is usually a summary of their recollection of events relating to the dispute.  Of course such recollections can be falsely presented, badly recollected or accurate – and so the purpose of cross-examination (usually by the opponent’s barrister) is to expose any such conflicts to undermine the evidence or as a minimum question the credibility of the witness.

• from 6 April 2021 the Civil Procedural Rules governing the preparation of witness evidence changed, to mitigate any potential “improvement” of a witness’ evidence by advisors and other third parties.
• in a similar fashion to the US, a direct record (or deposition) may now need to be prepared from the witness, such that the evidence is drafted in the witness’ own words.

These rules are subject to several exceptions, both in terms of how the evidence is presented and the types of proceedings they relate to.  There is also still substantial room for a party’s legal advisor to assist in the preparation of such evidence.  At Francis Wilks & Jones we can assist in navigating these rules to best present your case.

Common mistakes and evidence strategies

The important aspect of evidence is that it needs to be truthful, reliably presented and supported by additional extraneous evidence.  However, not all commercial transactions (nor life itself) always leaves a trail of all such helpful evidence.

• equally, how you present your evidence is critically important, focusing on what the Court needs to see (not what you would like to present).
• emotions are perhaps one of the biggest obstacles to a successful outcome in commercial litigation proceedings, hence why an unemotional lawyer is best employed – one who will be able to distinguish helpful information from mere emotional rhetoric. 

These rights to fair justice (underpinned by various Human Rights legislation and the European Convention on Human Rights, which the UK remains a participant in post Brexit) provide that every party is entitled to legal advice, and is not restricted by any personal attribute or indeed their lack of legal knowledge.

At Francis Wilks & Jones we can assist you with how best to present your case and how to properly deal with your evidence.  We fully understand the balance between your interests and the requirements to present your evidence honestly and accurately.  It is this understanding that will ultimately dictate the success of your case.  Should you require assistance then please do not hesitate to contact us.

If there was ever a star rating for law firms, Francis Wilks & Jones would score five stars plus. Professional and pro-active, they were able to understand my problem quickly, provide expert advice, outline a solution and put it into place with a successful outcome. I should have gone to them sooner.

A happy client