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What doesn’t go in a witness statement

The point of a witness statement is to say what happened – to the best of the witness’s knowledge, and to the extent that what that witness knows is relevant to the questions in dispute. Of course, that doesn’t mean you must confine yourself to statements that the other side will deny: plenty of what is not disputed is nevertheless relevant to what is disputed. And you want your witness statement to tell a story that is easy to understand, so you will need to put in some background anyway. So inevitably you will need to include a certain amount that is uncontroversial. Your statement might start something like this:

I first joined Widge It! (then called ‘The Widget Company’) as a technical assistant in the finishing department at the age of 17. I achieved various promotions, and by 2008 I was Head of quality assurance, with a team of 30 reporting to me either directly or indirectly. Until the events that led to my dismissal, my annual appraisals had all been either good or excellent, and I had an unblemished disciplinary record. I was given a loyal service award in 1995 after 25 years service.

Probably the other side won’t deny any of this. But the tribunal needs to know it, and someone’s got to tell them.

But the witness statement shouldn’t include:

  • judgements about how badly anyone has behaved
  • legal argument
  • comments about why what someone else says should not be believed
  • The first of these is dealt with in more detail in Show, don’t tell. The tribunal will make up its own mind whether what happened was disgraceful, or unfair or whatever. Once they’ve heard all the evidence, you may want to suggest certain conclusions in your closing submissions – but putting this in a witness statement is premature, and likely to be distracting.

    As to the second: again, the place for legal argument is in submissions at the end of the case.

    The last category is a particularly tempting mistake. Your former line-manager says something in his statement you know is wrong, and you reckon you can prove it – perhaps there’s a document that shows he can’t be right. Why shouldn’t you point out the inconsistency in your witness statement?

    The answer is that it isn’t evidence. It’s not part of what you say happened – it’s comment on some of the other evidence. A good practical reason not to put it in your witness statement is that, if you do, you give the other witness prior warning. If there’s a killer document in the bundle that shows your former line manager to be a liar, you’ll get much more out of it if he hasn’t noticed it until you take him to it in cross-examination.

    In all three cases, the underlying point is that witness evidence should be confined to what you are able to say because because you were there. That’s what it is to be a witness. You’ll get your chance for comment and legal argument, but it comes later.

    3 comments

    1. Michael

      The exception I have seen to the rule about legal argument in witness statements is where a CAB or Law Centre has been able to help a litigant in person with their statement, but doesn’t have the resources to provide representation or write full submissions.

      Sometimes they will put a certain amount of legal argument into the witness statement on the basis that it is better to have it in the wrong place than not to have it at all.

      In an ideal world, this would not be necessary. But sometimes it is the least worse alternative.

    2. Jonathan Halsey

      Useful tip: omit anything that is basically a paraphrase of undisputed documents – it saves time. Additionally, if a statement does contain large portions of undisputed material, you could – with the client’s consent – bring a shorter tracked changes version to the hearing (with visible changes so it can clearly be seen what has been deleted) & draw to the ET’s attention that that is what you’re doing.

    3. Naomi

      I agree with the first point. Respondents are often offenders here: the person who conducted the disciplinary hearing, for example, is required to say “He said… and then I asked him… HIs reply was….” – and all that’s happened is the person drafting the statement has read the notes of the meeting and rewritten them in narrative form. There’s no point. Much better to say something like “My notes of the meeting are at page [xxx],” or if you’re the claimant “The HR assistant’s notes of the meeting are at page [xxx], and they are mostly accurate. The only bit I disagree with is…”

      I’m not convinced about having 2 competing versions of the witness statement – it sounds a bit confusing to me.

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