At the trial, you and your witnesses will normally only be able to talk about what you have already said in your witness statements. You will not be allowed to talk about anything new or additional.

It is therefore very important that everything your case relies on is in the statement. 

There are rules about what a witness statement has to have in it.

A witness statement needs to be laid out in a particular way to be used in court. 

For more help and our top tips buy the guide.

The order for directions in your case (the list of steps that the court sent to each side explaining what must be done and by what date) will tell you when you and the other side must exchange your witness statements. Typically, the court orders the sides to exchange witness statements after 'disclosure'. This is standard and is because otherwise you would not benefit from what you find out from the other side's documents. For example, you might find out something that supports your case that you want to bring to the court’s attention. You can do this by mentioning it in your statement. Alternatively, you might find something that threatens your case. You have the chance to explain the circumstances or offer a different explanation in your statement.

If you have a witness but you decide not to use their evidence, there is no need to give their statement to the other party.

You have to exchange witness statements at the same time. This is called ‘simultaneous exchange’. Exchange happens when sides exchange statements on the same day. If you exchange via email you both press ‘send’ at the same time – a time you’ve agreed in advance. Simultaneous exchange is to prevent a side or witness seeing the other side’s statements before writing their own. The idea is that otherwise you could get some advantage from seeing what the other side’s witnesses say before you write yours.

You can only be completely sure that ‘simultaneous exchange’ happens if you agree to exchange statements at a person-to-person meeting. But very few people do this; it is too inconvenient. Instead you all agree to exchange statements by email on a particular day at a particular time or by posting them on the same day. If you post them, get a certificate of posting from the post office in case there is a dispute later.

People who give expert opinion are called expert witnesses. 

The evidence they give is called expert evidence. Their evidence comes in a written document called an expert’s report. It focuses on what they think or believe about something they are experts in. 

A judge will only take account of someone’s opinion if it is given by an expert. Their opinion must be relevant to the dispute - for example, a doctor’s opinion about whether or not you will fully recover from an accident. 

In small claims, you can’t have an expert’s report unless the court gives permission (except if it is a small claim for personal injury).

In fast track claims, it is quite common to have an expert’s report. You still need to ask permission and the court will only agree if it is necessary to resolve the dispute. Usually, you don’t need the expert to come to court to give evidence. If an expert has to attend court, it will add hugely to the cost. It may also delay the trial as their availability is often limited.

For more guidance on expert evidence, buy the extended guide.

What must be included in a civil witness statement?

A witness statement must contain all relevant facts the witness knows. For small or fast track claims in England and Wales, the key  elements are:

1. The case name and claim number.
2. The witness’s full name, address, and occupation.
3. What happened and when, set out clearly in numbered paragraphs and on numbered pages.
4. A statement of truth

For more detailed guidance and how to lay it out get the step-by-step guide. 

What is the ‘Statement of Truth’ and why do I need it?

A Statement of Truth is a declaration that the facts presented in the document are true. You must have one in a witness statement for it to be used in court. 

What is the difference between an independent witness and a witness of fact?

A witness of fact is anyone who can give evidence about what they personally saw, heard, or did relating to the dispute. This includes the person who is bringing the chase.

An independent witness is a witness of fact who has no personal or financial connection to you or the case. Their evidence is generally given greater weight by the court than that of friends or relatives.

What happens if I miss the deadline for exchanging statements?

If you fail to exchange your witness statements by the deadline set in the court's direction order, you risk having the evidence disallowed by the judge. The judge has the power to refuse permission for you to rely on that witness or evidence at the hearing. 

Can I use an expert report in a small claim?

No, not usually. You must get express permission from the court to use any expert evidence. If permission is granted, the judge will usually insist on a single joint expert, paid for by both sides.

The maximum amount of fees recoverable is capped at £750. You must ensure the expert's fees are proportionate to this limit and the value of your claim.

The court will only give permission if it is absolutely necessary to resolve the case.

What is a single joint expert and does the court prefer one?

A single joint expert (SJE) is a single expert instructed and paid for by both sides, whose report is shared between them and submitted to the court.

The court generally prefers the use of a single joint expert as it reduces costs, ensures the expert is independent and works solely to assist the court and usually helps to narrow the issues in dispute.

Who does the expert witness work for - me or the court?

The expert witness’s overriding duty is to the court, not to the side who instructed or paid for their services.
The expert must provide an objective, unbiased opinion, and if their findings are unfavourable to your case, they cannot be changed or withheld from the court. This is why it is important to carefully consider if you want an expert witness.
 

Contempt of court 

Showing disrespect to the court, perhaps by lying or not following the judge's orders. It is punishable by a fine or even time in prison.

Disclosure 

The process of showing the relevant evidence to the other side.

Expert evidence 

This is evidence of an expert’s opinion, of what they think or believe about something.

Hot-tubbing 

When you have two or more expert witnesses, and they give their evidence at the same time instead of (or as well as) being cross examined individually. Also known as Concurrent expert evidence or CEE.

Liability 

roving that the problem is legally the defendant’s fault (they breached your legal rights or broke a contract with you).

Quantum 

The amount of compensation your claim is worth.

Simultaneous exchange 

When the sides to a case exchange their witness statements at the same time on the same day.

Statement of truth 

The last and standalone paragraph at the end of a witness statement declaring that the facts stated in the statement are true. There is also a statement of truth at the end of a claim form or particulars of claim or schedule of loss, declaring that the contents are true.

Witness statement 

A document in which someone explains what they saw, did, or heard.

Disclaimer

The information in this guide applies to England and Wales only. The law may be different if you live in Scotland or Northern Ireland.

The law is complicated. We have simplified things in this guide. Please don’t rely on this guide as a complete statement of the law. We recommend you try and get advice from the sources we have suggested.

The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.

Acknowledgements

This guide was produced by Advicenow. We would like to thank everybody who commented on the guide including editorial teams at Thomson Reuters who kindly peer reviewed this updated version.

This guide was updated thanks to funding from the Ministry of Justice.