The order for directions in your case will tell you when you and the other party must exchange your witness statements. Typically, the court orders the parties 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 party’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 parties 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 party 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.
If you exchange witness statements by sending them attached to an email, it is far better to send them as pdf documents or as scans. If you send them as Word attachments, there is software that allows the other side to read the changes you have made in the course of preparing your statements.
You should not send your statement without double checking that the other party is sending theirs at the same time. Phone them or their adviser to check that they are ready to exchange. You might say something like: ’Do you agree that we will email our statements to each other immediately after this call ends?’
- You should also agree that neither is to open the other’s witness statements until you each confirm safe receipt. It is particularly common for something to go wrong with email – perhaps the attachment was too large to be delivered, or the email went into the spam folder, or a wrong digit in the email address caused delivery failure.
- You should keep a written record of any conversation about exchange. Note down the key points made by you and the other party and the date and time of the conversation.
If it turns out that the other party has not prepared their witness statements in time to exchange them before the deadline set out in the order for directions, you can try informal pressure, for example, phoning or emailing them to ask them to get them ready immediately. Explain that if they don’t, you will have to go back to court. Tell them when you will do this. If you phone them, follow this up with a letter. If this doesn’t work, you may need to apply to the court for an order that unless they exchange witness statements within a certain number of days (for example, 7 days), the court will strike out (not allow them to continue with) their claim, defence and/or counterclaim. You will have to pay a fee, and you will want to ask the court to order the defendant to pay this back to you in any event. You can find more information about making this kind of application in another guide in this series Interim applications - how to ask a court to do something.