Witness statements and expert reports

This guide is for you if you:

• are involved in a civil claim in either England or Wales, and
• your case involves a claim for £25,000 or less, and
• you are representing yourself (you are a litigant in person) and not eligible to have your case paid for by legal aid, a trade union, or insurance.

This guide is also for people supporting litigants in person, for example Support Through Court volunteers, Citizens’ Advice volunteers, housing support workers, advice workers and court staff, as well as relatives and friends.

This guide is not for you if you are involved in:

• a criminal case
• a family case (such as an application for a domestic violence injunction or a divorce),
• a housing disrepair or housing possession case including mortgage possession,
• an injunction (including court claims about anti-social behaviour)
• a medical accident case,
• a case involving defamation (libel or slander) or
• a tribunal case (such as a discrimination or employment case).

Legal language

We try to explain any legal language as we go along, but there is also a ‘What does it mean?’ section at the end.

September 2021

Generally, all claimants and defendants have to prepare a witness statement. If you want anybody else to give evidence to the judge at the trial about what they saw or heard, you must prepare a witness statement for them as well. These witnesses are called witnesses of fact because they can help prove the facts of the case.

If you have a small claim, the judge may decide not to order you or the defendant to prepare a witness statement if you are both litigants in person, and if the issues are very simple and of low value – for example, if you claim that you lent your neighbour £100 and want it back, and he says it was a gift because he was on hard times. Although the judge might allow your case to go ahead without witness statements, it is better to get witness statements prepared if you can. Having a witness statement can also help if witnesses later forget what happened.

In a fast track claim, the court will expect you to prepare a formal witness statement. If you have to do witness statements, you should prepare them fairly early on in your case, because the overall time you have to prepare your case will disappear and before you know it you’ll be at trial.

The contents of a witness statement

At the trial, you and your witnesses will normally only be able to talk about what you have covered in your witness statements. You will not be allowed to talk about anything new or additional. If you want to talk about it, put it in the statement.

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

For our guidance on what to include, and how to layout the witness statement, buy our extended guide.

A witness statement needs to be laid out in a particular way to be used in court. But you don’t need to do that immediately. What is important is to get the information you need from your witness as soon as possible, to put this into a typed statement using short numbered paragraphs and to get the witness to sign and date it.

You should end the witness statement with the sentence ‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’ This sentence is called ‘the statement of truth’ and is a necessary ending for a witness statement.

Once you see the other side’s disclosure evidence, you may want to get your witness to comment on it. Afterwards you may want to update their statement.

For more guidance on what to include, and how to layout the witness statement, buy our extended guide.

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.

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?’

Important: 

• 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.

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. And 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.

You can’t have an expert’s report in a small claim 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, but often the contents of the report aren’t in dispute, and you won’t need the expert at court to give evidence. If an expert has to attend court it will add hugely to the cost. It may also delay the trial of your case as their availability is often limited.

When do I need expert evidence?

Think carefully before getting expert evidence. It is a costly step and, even though you are paying the expert's fees, the expert is there to help the court, not you. This means that the expert may say something that you do not like, and you cannot stop that happening. Alternatively, the expert appointed by your opponent might be more convincing. 

However, there are cases where you may need to get expert evidence to prove some of the points in your case. For example, if your case is about personal injury, you will need a medical report from an appropriate medical expert.  Because experts must be impartial, it is usually best if they have not been involved in your case in any way so you would normally instruct someone who is not involved in treating you. 

How to get expert evidence about your case

For our guidance on how to get expert evidence, buy the extended guide (above)

For further guidance on how to get expert evidence, buy the extended guide (above)

Disclosure - the process of showing the relevant evidence to the other party.

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

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

Quantum – the amount of compensation your claim is worth.

Simultaneous exchange - this is when the parties 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 Law for Life's Advicenow project. We would like to thank all those who provided feedback on this guide, particularly Ashley Fredericks, from Nottingham Law School Legal Advice Centre,  and Sonja Dale from Keele University School of Law Legal Advice Clinic who peer reviewed it.

Thanks to the City of London Corporation’s charitable funder, City Bridge Trust for funding the creation of this guide.