The rest of this series about sorting out a dispute and going to a civil court can be found on our Going to a civil court page.
Top tip – Have a look at Suing in the civil court – an overview of the process to get an overview of what a typical case might look like and How a claim is dealt with – summary table.
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.
We try to explain any legal language as we go along, but there is also a ‘What does it mean?’ section at the end.
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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.
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. If you are the claimant what you put in your witness statement is a similar but more detailed version of what you put in your Particulars of Claim. You need to describe:
Your witness statement must also include details of how your losses and expenses came about, so that you can justify them. Claimants often forget this. They tend to concentrate on proving fault, and forget about proving quantum. Here’s an example:
‘I work as a self-employed gas-safe plumber, and because of my knee injury couldn’t work for six weeks. I averaged take-home pay of £1,800 a month for the six months before the accident, but November and December are my busiest months because of boiler repairs and breakdowns and emergency call-outs, so I believe I would have earned more, more like £2,500 take home. I refer to my diary for evidence of my work schedule and earnings for November and December last year.’
For further information about what you need to include in a witness statement read the section on witness statements in this practice direction: Practice direction 32 - Evidence
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 [name] believe the facts stated in this witness statement are true’. 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.
Shafiq’s story
‘I was cycling along the road between home and work when I hit a deep pothole and was thrown off my bike. I injured my knee as a result and my bike was damaged. Someone called an ambulance and I was taken to hospital. I want to make a claim against the council for failing to maintain and repair the area. The road surface was dangerous.’
Shortly after his accident, Shafiq finds Anne and thanks her for her help and asks her to give him a witness statement. Here is Anne’s witness statement as an example to help you write one.
[Name of witness Anne Best] First statement On behalf of claimant 1 exhibit “AB1” Dated dd/mm/yyyy IN THE COUNTY COURT at [Insert name] Claim No C001GH516 Claimant: [Insert name] Shafiq Ahmed Defendant: [Insert name] London Borough of Z ____________________________________________ Witness statement of Anne Best ____________________________________________ I, Anne Best, shop assistant, of 12 Smith Street London E28 4QZ will say:
I attach a rough sketch plan marked “AB1” showing the scene. STATEMENT OF TRUTH I, [Insert name] Anne Best believe the facts stated in this witness statement are true. SIGNED: DATED: |
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.
Be aware!
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?’
Important:
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.
Forms and rulesRelevant rule: Evidence The rules at Practice direction 35 - Experts and Assessors explain what an expert’s report should cover. Try to comply with the court rules as much as you can. The court will be aware that you are a litigant in person but aren’t likely to allow you much flexibility. |
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. 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.
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. 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.
It is normal to use an expert who is agreed on by both sides, except in the most complex and high value cases. If you need an expert, you are expected to propose who you want to the other side and ask them to confirm within 21 days that they don’t object.
If your case is a small claim, you won’t be allowed to use expert evidence without the permission of the court, which you have to apply for. (The rules for personal injury small claims are different.)
If you have a soft tissue injury resulting from a road traffic accident and are using the Claims Portal to deal with your claim, then MedCo is the system you will use to get a medical report.
If you have to get your own expert report we can’t recommend a particular expert, but the internet is full of links to directories of expert witnesses. Here are a few you may want to look at:
If you're not covered by the MedCo system and are looking for a medical expert but aren’t sure what kind of expert you need, you can try contacting the British Medical Association. They may be able to help. You can contact them by phone: 0300 123 1233 or email: info.public@bma.org.uk. You could also ask your GP.
You will need the court’s permission to use expert evidence in court, that is, where experts actually come to the court to give evidence in person, rather than have their written reports relied on. In most fast track cases the court will decide that there should be a single expert, jointly instructed by you and the other party. In others, it may allow each party to have separate experts, but that is increasingly rare because it is so expensive. In either case, expert evidence has to be given in a written report. Fortunately, it is very common for the other side to agree the contents of an expert report, particularly a medical report in straightforward cases, for example, involving a broken leg.
The order for directions in your case will set out what you need to do about expert evidence. For example, the order may say that you are allowed to rely on a particular expert’s evidence and ask you to file an updated report by a particular date.
Usually, either party can submit written questions for the expert to answer before the trial happens. The court will include a timetable in their order for directions setting out how long you have to ask any questions and how long the expert has to reply. Typically, you may have 14 or 21 days after you get the expert’s report to submit your questions and the expert will have a similar period in which to reply. You must send a copy of your questions to the other party.
Unless the court gives permission or the other party agrees you can only ask questions that aim to make some aspect of the report clearer and more understandable. The answer you get will be treated as part of the expert’s report and so will become evidence in the case, whether you like what they say or not.
There are lots of rules and guidance about experts, their reports and their role in court proceedings. If you want to involve an expert in your claim, you will need to read these.
You will need the court’s permission to use expert evidence in court, that is, where experts actually come to the court to give evidence in person, rather than have their written reports relied on. In most fast track cases the court will decide that there should be a single expert, jointly instructed by you and the other party. In others, it may allow each party to have separate experts, but that is increasingly rare because it is so expensive. In either case, expert evidence has to be given in a written report. Fortunately, it is very common for the other side to agree the contents of an expert report, particularly a medical report in straightforward cases, for example, involving a broken leg.
The order for directions in your case will set out what you need to do about expert evidence. For example, the order may say that you are allowed to rely on a particular expert’s evidence and ask you to file an updated report by a particular date.
Usually, either party can submit written questions for the expert to answer before the trial happens. The court will include a timetable in their order for directions setting out how long you have to ask any questions and how long the expert has to reply. Typically, you may have14 or 21 days after you get the expert’s report to submit your questions and the expert will have a similar period in which to reply. You must send a copy of your questions to the other party.
Unless the court gives permission or the other party agrees you can only ask questions that aim to make some aspect of the report clearer and more understandable. The answer you get will be treated as part of the expert’s report and so will become evidence in the case, whether you like what they say or not.
There are lots of rules and guidance about experts, their reports and their role in court proceedings. If you want to involve an expert in your claim, you will need to read these.
RulesRelevant rule: Experts and Assessors Relevant guidance explaining what an expert’s report should cover is at Practice direction 35 - Experts and Assessors Try to comply with the court rules as much as you can. The court will be aware that you are a litigant in person but aren’t likely to allow you much flexibility. |
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.
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.
This guide was produced by Law for Life's Advicenow project. Thanks also to Ashley Fredericks, from Nottingham Law School Legal Advice Centre who peer reviewed it.
Thanks to the City Bridge Trust for funding the creation of this guide.
