If you need to prove something and you don’t have any documents to help you, or you have documents but they need to be explained, you may need to prepare witness evidence. It is what you or another witness say to the court about your case.
Witness evidence takes two forms. Witness staements and oral evidence.
You have to prepare witness statements from all your witnesses well before the trial. There are rules about what a witness statement should look like and include. Both sides have to exchange the witness statements which have been prepared for their own witnesses to help each other see the strength and weaknesses of each other’s cases. See Witness statements and expert reports – for more information and an example witness statement.
Check that any witness who can give information to support your case understands their role. If necessary, are they willing to attend court? Sometimes people who are happy to talk to you about what they saw or heard are reluctant or refuse to help when they realise you want to write down what they have told you in a statement and get them to sign it.
It may help to explain to your witness that they could make the difference between you winning or losing your case.
Each witness’s evidence has to be about the facts and based on their own knowledge or belief. Witnesses must make it clear whether what they say in their statement is from their own knowledge, or a matter of information or belief. They must also say what the source of any matters of information or belief is.
It needs to be clear, logical and in language the witness understands and would use themselves. It must reflect what they told you and not be ‘spun’ into something similar but which suits your case better. You must not tell a witness what you want them to say or put words into their mouth.
You shouldn’t include statements which are just your opinion about something. Only an expert witness, such as an engineer or a doctor can do this, when they give evidence about something they are experts in, and which is relevant to the dispute. For example, a medical expert’s opinion about whether or not you will fully recover from an accident.
Where possible choose an independent witness (not a member of your family or a friend) to give evidence because unlike your family and friends they don’t have an interest in the outcome. If the only witnesses are family or friends, and sometimes they will be the only witnesses, you need to do your best to ensure that their witness statements are as factual and neutral as possible.
It may be that you are the only person other than the defendant who was involved in the relevant events. In that case, you may need to prepare a witness statement for yourself, explaining to the court any points which you are unable to deal with using documents, or where you do have documents, but they need explaining. You might find it helpful to produce a formal witness statement, or at the very least a comprehensive account of your evidence, very soon after the incident has occurred and certainly well before a statement is required for formal proceedings. This is because
1) it allows you to ensure that you include everything that is relevant in your statement when you come to draft it as you’re drafting it from a contemporaneous account and,
2) it stops your evidence from becoming confused with the passage of time which is perfectly natural.
Some claims might take years to reach a final hearing from the time that the index incident occurred and it is therefore sensible to collate your evidence as soon as possible.
Try to get witness statements as early as possible, especially if from strangers. Witnesses are likely to be able to recall details more easily shortly after an incident than if you ask them some time afterwards. If your witnesses include strangers they may no longer be contactable at the contact details they have given you, or they may lose interest or change their minds about helping if you leave it too long.
Oral evidence is spoken evidence. You may also hear this kind of evidence called oral testimony or witness evidence.
Witnesses may be required to give oral evidence at trial about the things they have said in their witness statement, if the other party does not accept the witness’s evidence and wishes to cross-examine them.
The advantages of calling a witness are that, if you get as far as a trial, they may give clear, direct evidence that supports your case. The disadvantages are that your witness may be vague, forgetful, unsure, frightened, or panicky. They may not turn up or end up being more useful to your opponent than you.
On the small claims track, as a rule, your witness statement, or that of your witnesses, will stand as the evidence in chief for that individual - this is just a fancy way of saying that what is contained within the witness statement is the evidence of that person and cannot usually be added to. A judge might allow you clarify some points within your witness statement, but you will not be able to add new evidence at the final hearing which is not already within the witness statements. You will, however, be able to ask the defendant and their witnesses questions on what is contained within their statements to help you prove your case.
Hearsay is second-hand evidence, where a witness gives evidence of a fact based on what was said to them by someone else.
Example of hearsay evidence
‘I got a local handyman to do some house repairs while I was out at work. He invoiced me for five hours work, but my neighbour told me that she’d been chatting to the handyman, and he’d told her it was only two hours’ work, and he was expecting to be on his way before lunch’.
So, if the neighbour won’t or can’t be a witness, that part of your witness statement which includes the neighbour’s account will be ‘hearsay’. A civil court accepts hearsay evidence provided the witness giving the hearsay evidence will be available to give oral evidence at trial if required. However, the court is likely to give it much less weight than other forms of evidence, because it’s not something you saw or heard yourself.