17. Witness Statements and Documentary Evidence
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The general rule in law is that he who asserts must prove and as such, the Claimant has the burden of proof and is required to prove his case on the balance of probabilities.
A solicitor must therefore gather the appropriate evidence to assist the client in discharging their burden.
A client may prove their case by using oral, documentary or real evidence.
Certain types of evidence cannot be used at trial.
These include irrelevant or privileged evidence, non-expert opinion evidence, without prejudice communications and evidence affected by public interest immunity.
In addition, the Court has discretionary powers to exclude evidence under CPR 32.10 and CPR 35.13.
These are a common form of evidence and are usually prepared by the solicitor.
They are written in the first person, using the words of the witness and will generally refer only to the facts in issue.
A draft statement should be sent out to the witness to check before they sign the statement of truth.
Practice Direction 32 details how a witness statement should be set out:
PD 32 17.2 states: At the top right hand corner of the first page there should be clearly written:
(1) the party on whose behalf it is made,
(2) the initials and surname of the witness,
(3) the number of the statement in relation to that witness,
(4) the identifying initials and number of each exhibit referred to, and
(5) the date the statement was made.
PD 32 18.1 deals with the body of the witness statement which should state:
(1) the full name of the witness,
(2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer,
(3) his occupation, or if he has none, his description, and
(4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case.
Under PD 32 18.2, a witness statement must specify which statements are from the witness’s own knowledge and which are matters of information or belief as well as detailing the source for such matters of information or belief.
Under PD 32 18.3, any exhibits should be verified and identified by the witness and remain separate from the witness statement. They must be produced at trial.
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