The latest amendments to the Civil Procedure Rules (CPR) were announced back in January 2020 and included some important changes in regards to Witnesses, Witness Statements and Statements of Truth. The earlier post on witness statements had a large number of hits. 18.3 An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement. Power of the court to require a document to be verified. 10.2 Where an affidavit is in a foreign language: (b) must file the foreign language affidavit with the court, and. Some significant changes have been made to the Civil Procedure Rules concerning witness statements, which take effect from 6th April 2020. (3) the deponent signed or made his mark, in his presence. If a VCF direction is given, arrangements for the transmission will then need tobe made. By Lisa Feng and Steven Fennell. These requests are governed by Part 18 of the Civil Procedure Rules (CPR). This website uses cookies to improve your experience while you navigate through the website. VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. (b) the translator must sign the original statement and must certify that the translation is accurate. We'll assume you're ok with this, but you can opt-out if you wish. 37. “19.1 CPR rule 32.4 describes a witness statement as "a written statement signed by a person which contains the evidence which that person would be allowed to give orally". This will provide a useful back-up if there is any reduction in sound quality during the transmission. 20. 18.4 Where a witness refers to an exhibit or exhibits, he should state ‘I refer to the (description of exhibit) marked‘…’’. These cookies do not store any personal information. The court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. 26.1 A statement of case may be used as evidence in an interim application provided it is verified by a statement of truth18. That party is hereafter referred to as ‘the VCF arranging party’. He may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence. These cookies will be stored in your browser only with your consent. must now be dated with the actual date signed and include new standard text with a contempt of court warning. April 16, 2020. (By rule 81.4(1), unless and to the extent that the court directs otherwise every contempt application must be supported by written evidence given by affidavit or affirmation.). Witness Statements. CPR. Both Witness Statements and Statements of Case (Particulars of Claim, Defences etc.) 27.2 All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. Please take a look at our course overview or email us to discuss multiple licence purchases for your team. Witness statements prepared in a foreign language must be translated and both statements filed at court. 28  28.1 1 Where a party alleges that a statement of truth or a disclosure statement is false the party must refer that allegation to the court dealing with the claim in which the statement of truth or disclosure statement has been made. The old sanction for late service of witness statements (in RSC Ord 38 r. 2A(10)) was that the defaulting party “shall not be entitled to adduce evidence” that was not served in time. 27.9 The bundle should normally be contained in a ring binder or lever arch file. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise. 22.3 If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence. But opting out of some of these cookies may affect your browsing experience. This website uses cookies to improve your experience. 22.1 Any alteration to a witness statement must be initialled by the person making the statement or by the authorised person where appropriate (see paragraph 21). There have long been issues raised as to what constitutes a CPR compliant witness statement in the circumstances where the witness does not have a full grasp of English. 19.2 The function of a witness statement is to set out in writing the evidence- in-chief of the maker of the statement. If the oath or affirmation can be administered in the manner normal in England and Wales, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. (3) the number of the affidavit in relation to that deponent, (4) the identifying initials and number of each exhibit referred to, and. With current technology, picture quality is good, but not as good as a television picture. In particular: Stress to the litigants, both represented and in person, that the witness statements should a) address the issues and b) not address anything else (apart from essential background). The VCF arranging party should take steps to ensure that an associate is present to do likewise when it is a studio or conference room. CPR 32.9 provides a mechanism whereby a party who is required to serve a witness statement for use at trial but is unable to obtain one may apply for permission to serve a witness summary instead. Witness statements must not be used to argue the litigant’s case. (4) state if he is a party to the proceedings or employed by a party to the proceedings, if it be the case. It is recommended that the judge, practitioners and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission. To gain the maximum benefit, several differences have to be taken into account. If the claimant is unrepresented, the court may direct that another party must prepare and produce the trial bundle. 1.4 Affidavits must be used as evidence in the following instances: (1) where sworn evidence is required by an enactment5, rule, order or practice direction, and. WITNESS STATEMENTS: AN OVERVIEW OF THE RECENT CHANGES TO THE CIVIL PROCEDURE RULES _____ Introduction 1. Any witness summary should be served within the same deadline set for witness statements. 27.13 The party filing the trial bundle should supply identical bundles to all the parties to the proceedings and for the use of the witnesses. The changes have been implemented to highlight the risk of proceedings for contempt of court being commenced where a person or party signs a statement of truth without an honest belief in its truth. In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the royal coat of arms to be placed above the judge's seat. They say that: 1. … The defendant argued that the very definition of witness statement involved a personal signature from the witness. CPR 32.10 specifies the consequences of failure to serve a witness statement. It might not be when a commercial facility is being used. 24.1 Where the court has ordered that a witness statement is not to be open to inspection by the public15or that words or passages in the statement are not to be open to inspection16 the court officer will so certify on the statement and make any deletions directed by the court under rule 32.13(4). CPR Rule 32.10 specified the consequences of failing to serve a witness statement -namely that a witness may not be called at trial(and so the witness statement cannot be relied on as evidence). It follows that even if the parties had purported to reach a concluded agreement on an extension of time this would not have been effective unless the court were to be persuaded formally to endorse it. It concerns witness statements for use at trials in the Business and Property Courts and applies to new and existing proceedings, but only to trial witness statements signed on or after [date]. Under CPR 5.4(C)(1), a non-party has the right to obtain copies of statements of case filed by the parties and any orders and judgments made by the Court. In many cases, a simpler and sufficient alternative will be to ensure that there are fax transmission and reception facilities at the participating sites. and; be signed by the witness and dated. This guidance is for the use of video conferencing (VCF) in civil proceedings. The parties should also agree where possible—, (a) that the documents contained in the bundle are authentic even if not disclosed under Part 31; and. 27.3 Rule 39.5 provides that unless the court orders otherwise, the claimant must file a trial bundle containing documents required by—. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. A request to the Attorney General is not a way of appealing against, or reviewing the decision of the judge. The local site will, if practicable, be a courtroom but it may instead be an appropriate studio or conference room. The amendments relate to all statements of truth and come into effect on 6th April 2020. 27.4 Rule 39.5 provides that the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial. They should be arranged in chronological order with the earliest at the top, and firmly secured. (3) his occupation, or if he has none, his description, (4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case; and. The VCF arranging party must contact the listing officer, diary manager or other appropriate officer of the court which made the VCF direction and make arrangements for the VCF transmission. 13. witness statements can be “late” for different reasons – there can be good reasons This is an issue that has not yet been fully considered by the courts. • They serve to substantiate the contents of witness statements, themselves the bedrock of both interim applications and evidence at trial. Affirmed at ……… this …… day of ……… Before me, I having first read over the contents of this affirmation to the deponent [if there are exhibits,add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his mark on the affirmation in my presence. Witness Statements: the new rules and some old dos and don’ts. 1.2 Evidence at a hearing other than the trial should normally be given by witness statement1(see paragraph 17 onwards). The translator must sign the original statement and certify that the translation is accurate. The wording for a statement of truth is set out in the CPR. Perhaps even more important. 27.5 Unless the court orders otherwise, the trial bundle should include a copy of—. Statements of truth underpin key documents in the civil litigation process: see CPR 22.1. 2.01 Give a statement setting out the substance of all material instructions (whether written or oral) including the questions on which your opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to your opinion(s). 18.1 The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language, the statement should be expressed in the first person and should also state: (2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer. Before seeking a direction, the applicant should notify the listing officer, diary manager or other appropriate court officer of the intention to seek it, and should enquire as to the availability of court VCF equipment for the day or days of the proposed VCF. 27.6 The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial. ” Electronic signature of documents. (4) follow immediately on from the text and not be put on a separate page. Generally a Part 18 request will be made shortly after the relevant statement of case is served. The convenience of the witness, the parties, their representatives and the court must all be taken into account. Its convenience should not therefore be allowed to dictate its use. face to face, by telephone, through an interpreter). The guidance covers the use of VCF equipment both (a) in a courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. At the time I was the Acting Chief Justice. You can either ask them to make the statements themselves, or you can write it for them based on what they disclosed to you then ask them to sign. The full text of the 113th update to the Practice Directions can be found on the justice.gov.uk website. 11.3 The first page of each exhibit should be marked: (2) with the exhibit mark referred to in the affidavit. (a) the claim form and all statements of case; (b) a case summary and/or chronology where appropriate; (c) requests for further information and responses to the requests; (d) all witness statements to be relied on as evidence; (f) any notices of intention to rely on hearsay evidence under rule 32.2; (g) any notices of intention to rely on evidence (such as a plan, photograph etc.) 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.’ During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question and also any other person (whether another legal representative or the judge) making any statements in regard to the witness's evidence. An associate will normally be present to operate the recording equipment when the local site is a courtroom. That was largely dispensed with by previous civil justice reforms and is now very rarely seen. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. Consideration will need to be given in advance to the documents to which the witness is likely to be referred. 1.5 If a party believes that sworn evidence is required by a court in another jurisdiction for any purpose connected with the proceedings, he may apply to the court for a direction that evidence shall be given only by affidavit on any pre-trial applications. 2 The Attorney General prefers a request that comes from the court to one made direct by a party to the claim in which the alleged contempt occurred without prior consideration by the court. (2) identified by a declaration of the person before whom the affidavit was sworn. In particular: Stress to the litigants, both represented and in person, that the witness statements should a) address the issues and b) not address anything else (apart from essential background). Historically, such evidence would have been elicited in its entirety in examination-in-chief. That party must also arrange for a technical assistant to be similarly present at the remote site for like purposes. 29.1 Guidance on the use of video conferencing in the civil courts is set out at Annex 3 to this practice direction. Sworn at ……… this …… day of ……… Before me, I having first read over the contents of this affidavit to the deponent [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his mark on the affidavit in my presence. CPR Rule 32.10 specified the consequences of failing to serve a witness statement -namely that a witness may not be called at trial(and so the witness statement cannot be relied on as evidence). The application for a direction should be made to the Master, District Judge or Judge, as may be appropriate. Witness statements must: Start with the name of the case and the claim number; State the full name and address of the witness; Set out the witness's evidence clearly in numbered paragraphs on numbered pages; End with this paragraph: 'I believe that the facts stated in this witness statement are true.' Witness statements are a fundamental tool in the civil justice system. Witness statements. The cost of the use of a commercial studio is usually greater outside normal business hours. 18.5 The provisions of paragraphs 11.3 to 15.4 (exhibits) apply similarly to witness statements as they do to affidavits. 3. The new subparagraph (5) for CPR 18.1 will require those who prepare and draft statements to set out additionally how the statement has been prepared, be it by telephone, face-to-face, from a document and/or an interpreter. However, as … If the local site is not a courtroom, but a conference room or studio, the judge will need to determine who is to sit where. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. (8) be drafted in the witness’s own language. Important interim applications may fail if the witness statement does not adequately deal with all of the issues. 28.4 The rules do not change the law of contempt or introduce new categories of contempt. (2) in any application for a search order, a freezing injunction, or an order requiring an occupier to permit another to enter his land. 2. The following shows a typical layout. Or; (after, Before me) the witness to the mark of the deponent having been first sworn that he had read over etc. If solicitors’ instructions from their clients do not enable them to make a witness statement that is in conformity with the CPR, it is their duty to the court to ask for permission (which is provided for under the CPR) to file a defective witness statement. 10. (3) the number of the statement in relation to that witness. Courts use the evidence filed to decide issues: 3. 27.8 The trial bundle should be paginated (continuously) throughout, and indexed with a description of each document and the page number. (Paragraph 3A of Practice Direction 22 sets out the procedure to be followed where the person who should sign a document which is verified by a statement of truth is unable to read or sign the document other than by reason of language alone.). 22.2 A witness statement which contains an alteration that has not been initialled may be used in evidence only with the permission of the court. The proceedings, wherever they may take place, form part of a trial to which the public is entitled to have access (unless the court has determined that they should be heard in private). There is no absolute right to rely upon a witness summary. 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