Tagged: statement

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Small things about big cases

A paper-heavy case – where the hearing bundle runs to several volumes and there are a dozen witnesses or more – presents various specific difficulties. The main one of course is that there is a lot of material to get your head round. There’s no quick fix for that: preparation will take a long time.

This post just offers a handful of very small ways to make life easier.

1. Label the inside cover of each volume of your bundle with the volume number and the page range. That way, you’ll be able to identify the different volumes of your bundle at a glance when they’re open on the desk in front of you.
2. Print your own copy of the bundle double-sided. It’ll weigh half as much and take up half as much space. There will be some minor inconvenience (e.g. where you need to insert additional pages after the bundle is printed), but the reduction in general hassle is worth it. If you want to reduce your bundle to quarter size and you have good eyesight, print it double-sided on A5 paper.
3. Write the name or initials of the witness at the top of each page of the witness statement. (If it’s your statement, include it in the ‘header zone’ of the document; if it’s the other side’s, and they haven’t done that, just write it on each page.)
4. Print claimant and respondent witness statements on different coloured paper, so you can tell at a glance which is which.

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We have both previously posted about Mehta v Child Support Agency, in which the EAT doubted the usefulness of having witnesses read their statements aloud: see Reading statement aloud and Follow up on witness statements.

Another consequence of the shift in practice this has caused is that tribunals are more likely to want to pre-read not only the witness statements, but also the key documents they refer to. This means it’s a good idea to have formed a view before the hearing starts which documents the tribunal is going to need to read in full, and roughly how long it’s going to take them. Agree a pre-reading list with the other side if possible.

How do you decide which documents to put on your list? This isn’t a hugely important decision, so don’t agonise over it – but sensible decisions will help the hearing go more smoothly, so a few rules of thumb may be helpful.

  • Include any substantial document that forms a crucial part of the story: e.g. in a dismissal case, notes of the investigation meeting, the letter inviting you to a disciplinary hearing, notes of the disciplinary hearing, the dismissal letter, your appeal, notes of the appeal hearing, the appeal outcome letter
  • But don’t make them read lengthy documents just for ‘completeness’ – so e.g. if there are pages and pages of notes of the investigation meeting and the disciplinary hearing, covering very similar ground, you may not need to make the tribunal pre-read both.
  • Just because you haven’t put a document on the pre-reading list, it doesn’t mean you can’t take a witness to it in cross examination.
  • Don’t include documents that won’t make any sense to the tribunal until a witness has explained how it works and what it means.
  • Don’t bother with very short documents whose whole significance the tribunal can be expected to get at a glance.
  • How long will pre-reading take?

    It depends, of course. How many pages there are to read. Whether they are single or double spaced. Whether they are typed or handwritten; and if handwritten – whether by a primary school teacher or a doctor. How quickly the slowest member of the tribunal reads. Whether they are clear and succinct, or waffly and verbose.

    For now, try 50 pages an hour as a rough rule of thumb. And please make a note in your next hearing of how many pages you ask the tribunal to read, and how long it takes them – and then comment on this post, so that we can collect some data and refine this estimate.

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    Cut-and-paste witness statements

    Sometimes you find identical passages in two (or more) of the respondent’s witness statements. It’s obvious what has happened: whoever has drafted the witness statements has either cut and pasted passages, or – more likely – used one statement, edited and partly rewritten, as the basis for another.

    Is this allowed? Does it mean the witnesses have colluded? Does it mean some or all of them must be lying?

    Yes, sort of, and no.


    It is perfectly permissible for all the statements to be written by one person. If solicitors are acting, drafting statements will be a normal part of their job. The tribunal won’t be surprised or shocked by evidence that the witnesses didn’t write their own statements. Drafting the statement and providing the information that goes into it are two different jobs, though: the witnesses probably won’t have done the former, but they certainly ought to have done the latter. (See further Witness statements have to be true.)

    Sort of

    The respondents’ witnesses will almost certainly have discussed their evidence with their representative and each other, and it is possible that they have reached a consensus on things they initially disagreed about. That’s ok: no-one expects witnesses on either side to be kept isolated from each other. So in this limited sense, yes: certainly the witnesses on the other side will have ‘colluded.’


    It doesn’t mean the witnesses have to be lying. Collusion in the bad sense – that is, all getting together and agreeing to tell the same lie – is not allowed, of course. But the appearance of identical passages in different statements is much more likely just to mean that the solicitor has taken a bit of a short-cut when setting out the evidence of the different witnesses. The witnesses all agree broadly what happened anyway, and the solicitor hasn’t bothered to draft statements that reflect the subtle differences between them. As long as they have all read their statements and satisfied themselves that they are true, that’s legitimate.

    Where does it get you?

    What this means is that simply pointing out that the exact same passage recurs in two or more of the respondent’s statement won’t score you a direct hit. But it is certainly worth some thought about whether it shows weaknesses in the respondent’s preparation.

    That means thinking about the content of the identical passages. If two witnesses start their statements by describing in the same terms what sort of business the respondent is, or give identical accounts of how it operates its flexitime arrangements, for example, it will be very difficult to get the tribunal to see that as sinister (though they may be a bit irritated at being told the same thing twice). But if two witnesses give identical accounts of an incident that they both witnessed, it’s more suspect: two witnesses rarely notice and remember exactly the same events, and this does tend to suggest – at best – that they haven’t properly taken ownership of their statements. Just pointing out the similarity still won’t get you very far in itself – but it might get you somewhere in conjunction with other material. Your cross examination might go something like this:

    You checked your statement carefully before you signed it and swore to it?

    So you’re sure that everything you say in it is true?

    So when you say at paragraph 32 “Waa waa waa…” – you’re sure of this?

    You’d remember that because …. ?

    Would you turn to page 351 in the bundle. It follows that “Waa waa waa… ” can’t be right, doesn’t it?

    Would you turn to Ms Cox’s statement, paragraph 24 – she says exactly the same thing doesn’t she?

    And have a look at Mr Ashmead’s paragraph 39 – he says it too?

    By this time both the witness and the respondent’s solicitors are looking a bit silly. How silly depends on how important the evidence in question is, and how completely the document at page 351 shows it to be wrong. But certainly sillier than if only one witness had made this mistake.

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    Searchable statements

    In a complicated case, it’s worth saving all the statements on your side (and the other side too, if you have them in a suitable format) as a single continuous document. That way, if you know someone has said something about a particular subject, but you can’t remember who said it, or exactly where in their statement, you have a single document that you can search electronically (ctrl+F on a PC). This is useful while you’re preparing the case – and at the hearing too, if you have a laptop with you.

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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.

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    Witness statements have to be true

    This may seem obvious, but it is surprising how often it gets forgotten.

    The problem seems to be a failure of communication between advisers, for whom the process is routine, and witnesses, for whom it is normally a complete one-off. Advisers think it’s obvious that the witness must be satisfied that the statement is all true: after all, it is a document that says at the top ‘statement of Joe Bloggs’ and has a place at the bottom for Joe Bloggs to confirm that the statement is true and sign it. Of course Joe Bloggs won’t sign it unless he is convinced that it is true.

    But of course nothing of the sort. The currency has been devalued. An employment judge might throw up his hands in horror at the idea that a witness has sworn to a statement that, actually, he hasn’t bothered to check properly – but the same employment judge has undoubtedly ticked boxes confirming “I have read and accept the terms and conditions” half a dozen times in the last month, when what he really meant each time was “I can’t be bothered to read the small print, but I’m willing to accept it on the gamble that there’s nothing too outrageous in it.”

    A witness statement is completely different. If you are a witness, you mustn’t sign your statement unless the confirmation at the end that it is true really does mean what it says. If your adviser has drafted something that puts an inaccurate ‘spin’ on what you’ve told them, make them correct it. If they’ve stated something as definite that you’re not sure about, change it so that the statement makes it clear you’re not sure. Putting your evidence in writing in a clear and logical order is your adviser’s job, if you’re lucky enough to have one; but making sure your evidence is correct is yours, and no-one else’s.

    Advisers can sometimes cross the line between presenting your evidence clearly and persuasively (which is perfectly legitimate) and telling you what to say (which is not). If there’s a tussle over your evidence, it’s one you need to win; and if you come under explicit pressure to give evidence that is not true, sack your adviser.

    The best way of grasping how important this is is to understand a bit about what it’s like to be cross-examined. Quite often there’s a sequence of questions that goes something like this:

    Q: You have just sworn that your statement is true haven’t you?
    A: Yes.
    Q: And you approved and signed it a couple of weeks ago?
    A: Yes.
    Q: You wouldn’t have signed it without checking carefully that it was true?
    A: No: [Actually – for the reasons given above – this is nonsense. All the same, 99 witnesses in a hundred will give the ‘right’ answer to this sort of question.]
    Q: And presumably you’ve read it again recently?
    A: Yes.
    Q: So if there was anything in it you weren’t confident about, you’d have corrected it before you swore to the tribunal that it was true?
    A: Yes.
    Q: So when you say at paragraph 12 of your statement that it was Tuesday 5 May that Sheila shouted at you in front of the whole office, you’re sure that’s right?
    A: Yes.
    Q: And you’d remember that clearly, because it was the first day back after the Bank Holiday?
    A: Yes.

    This is ominous. The respondent’s representative wouldn’t be working so hard at confirming your evidence about the date on which you say Sheila shouted at you unless she was pretty sure she could prove you wrong. Her aim is to prove you a liar, rather than merely mistaken or careless – hence the emphasis on how sure you are of this bit of your evidence. You are almost certainly about to be taken to a page in the bundle that proves – or seems to prove – that one of you wasn’t in the office at all on Tuesday 5 May.

    That’s why it is so important that your statement is your statement. Read the first sentence in your statement, and imagine the respondent’s representative taking you to it and asking you “Are you sure of this?” If the thought gives you a sick feeling, delete or rewrite the sentence. Repeat for every sentence in your statement. When you’ve finished, and made all the changes you need to make, you can sign your statement: not before.

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    Witness statement: include everything

    Claims very often have a main bit that is the real reason for going to tribunal, plus various little bits tacked on that wouldn’t have been important enough to make a claim about on their own, but which you felt, when you drafted your claim, that you might as well put in while you were about it.

    So, for instance, complaints that a dismissal was discriminatory or unfair are often accompanied by more minor disputes about holiday pay or contractual notice pay.

    When it comes to writing your witness statement, it is easy to overlook these extra bits. But it is important to remember that if the tribunal is going to make a decision about them, it will need to hear some evidence. So when you think you’ve finished your statement, look at it side-by-side with your ET1 and check that you have given evidence in your witness statement about everything you have complained about in your ET1.

    If when it comes to it the extra bits just don’t seem important enough to bother with, you don’t have to pursue them. But if that is your decision, don’t just leave them out of your statement – tell the tribunal and the other side that you are withdrawing them. Otherwise you will risk giving the other side an excuse to apply for costs on the basis that you have put them to the trouble of defending this aspect of your claim and then not bothered to pursue it.

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    Proving efforts to mitigate

    A previous post on mitigation advises keeping careful track of the efforts you have made to find work if your claim is about dismissal.

    These efforts need to be clearly set out in a witness statement that explains in detail what you have done to look for work and, if you are having any particular difficulty getting a job, why you think that is.

    Your witness statement might look something like this.

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    The tripod

    One of the difficult things about running a tribunal case for the first time is the uncertainty about what needs to be done before the hearing. The first step – putting in your ET1 – is fairly obvious, but after that it is easy to get overwhelmed.

    If the tribunal has made detailed case management orders, this makes things simpler. If you follow them, you should do most of what you need.

    Otherwise, it is worth remembering that there are three main things you need to sort out before you reach the tribunal. This is a gross simplification, but it is worth bearing in mind if you are uncertain what to do next.


    When the hearing starts you want to have an agreed bundle of documents, containing all the relevant evidence.

    Normally, this means you need to do two things: discovering and bundling.

    Discovery is the process of figuring out what documents you have; then asking the respondent for documents they have, and getting a tribunal order if necessary.

    Bundling is the process of drawing up an index of the relevant documents (not the same thing as all the documents), putting them in chronological order and paginating them. Paginate is a fancy lawyer’s term for writing page numbers on them. Then you have to agree the bundle with the respondent.

    Witness Statements

    All of the people who are going to give evidence should have prepared a witness statement and these should be exchanged with the respondent.

    Know what you are going to say

    Basically, you need to be ready to do two things: cross-examine witnesses and make submissions.

    What this will involve will vary from case to case. An experienced advocate, dealing with a simple case, might just jot a few points on a sheet of paper. On the other hand, in a complicated case, or if it will be your first time in a tribunal, you will want to do a lot more.

    A good starting point is a list of issues the tribunal will need to decide. Once you have that, you can expand it into a list of things you want to ask each witness about and another list of areas you need to address in submissions.

    Detailed lists of questions get a bad press in legal circles. The potential disadvantage is that they may turn you into a robot – asking one question after another in a monotone, paying no attention to what the witness says. But this can be avoided with a little care and attention.

    The advantage of detailed lists of questions is that they make sure you do not miss anything and allow you to plan, in detail, the order and approach of your questions. For beginners, this is particularly valuable.

    You should also consider written submissions. In complicated cases, these are almost vital. In a simple case, the tribunal will get much less advantage from them. But this does not mean they are not useful. By writing down, in full, what you want to say, you will make sure you have the issues, the evidence and your arguments thoroughly worked out.

    Unfortunately, you will normally not be able to complete your written submissions before the hearing starts. This is because you will not know what evidence is going to come out during the hearing. The best approach is to leave gaps in your submissions, where this evidence can be slotted in later.

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    What should be in a witness statement?

    The short answer is ‘All relevant evidence that a witness can give.’

    For the long answer, keep reading.


    A witness statement should be complete. You cannot rely on a tribunal’s indulgence to expand on what you’ve said or to ask follow up questions of the witness. Even if they do let you do this, it is better to put the information in to begin with. It will be one less thing to worry about, and you can present it in an organised, thought-out manner.

    The exception to this is when new issues are raised by the other-side in their witness statements.

    Occasionally, this will be something sufficiently significant or involved that it is sensible to put in a supplementary statement. But often, a quick question in examination in chief is better. The form is usually something like “In his witness statement, Mr Smith says that the company handbook was available on the staff notice board. What do you say about that?”

    Such questions should be asked sparingly, when you have something to add to the original evidence. Is it not necessary to go through all the the otherside’s statements, saying where they are wrong. If, for example, your witness says in her statement statement that she agreed to work for £100 per day, it is pointless to ask “Mr Jones says in his statement you agreed to work for £50 per day. What do you say to that?” The answer is obvious.


    A witness statement should include everything relevant, and nothing irrelevant.

    This is much easier to say than to do. The starting point is to have a clear list of issues that the tribunal will need to decide. Then put in all the evidence that will help them do so.

    There is no rule about how long a statement should be. It will vary from case to case and witness to witness. However, it will normally be proportinate to the length of the hearing. If you have a 30 page claimant’s statement for a 2 hour hearing, it is a sign that something is wrong. Similarly, if you have a 3 page claimant’s statement for in a 10 day discrimination case, the chances are that it does not go into enough detail. Bear in mind that this is general guidance and there are always exceptions.


    The witness statement is for evidence, rather than submissions. It should tell the tribunal what has happened, rather than tell them what to think about it. The latter is something for submissions.

    Having said that, a witness statement should be organised in a way that makes is easy for a tribunal to understand what it is you will be saying. If, after all the evidence is in and you are about to start making submissions, the tribunal has no idea what you will be saying, something has gone badly wrong.

    ‘That a witness can give’

    Occasionally you will see a witness statement that sets out the evidence of other people as well as the witness giving it. For example, it may say something like ‘Ms Smythe, the HR Manager, will say that …’ This is pointless. Ms Smythe should have her own witness statement setting out what she is going to say.

    It is important not to confuse this point with the issue of ‘hearsay evidence’. Hearsay is a rule of evidence from the criminal and civil courts. The precise definition is complex, but in broad terms it is evidence from a witness about what somebody else has told them.

    For example, if Mr Sampson gives evidence that Ms Brook told him that Mr Jones told her that ‘nobody sensible would appoint a woman who might get pregnant’ then Mr Sampson is giving hearsay evidence. He is one step removed from the incident and can only tell the tribunal what Ms Brook told him.

    Hearsay evidence is permitted in the tribunal and is quite common. It is, however, normally better to have direct evidence. If, in the above example, it was possible to call Ms Brook, that is more likely to convince the tribunal. Of course, by the time you get to tribunal Ms Brook may have regretted her candour and refuse to assist.