In recent years there has been an increasing trend towards using signed witness statements or affidavits in commercial actions in Scotland. These are intended to stand as the evidence in chief of a particular witness, as has long been the practice in England and Wales. This runs against the traditional Scottish practice in court of taking witnesses’ evidence in chief orally from the witness box, prior to cross-examination. Proponents of this practice highlight that oral evidence taken in this way is fresher, more likely to be in the own words of the witness, and perhaps more likely to be honest.
However, these points may seem less relevant in commercial actions, particularly complex ones, where evidence is to be given on matters which may have occurred some time ago. The merits of written witness statements in such cases was referred to in the recent Scottish case of Luminar Lava Ignite Ltd v Mama Group 2012 SC 310. The then Lord President (Hamilton) stated:
“As the Lord Ordinary has stated, the use of such written statements is a move away from ‘trial by ambush’ and allows a witness to give a considered response to points which may be made against him and the evidence given by others.”
As above, these comments are thought to be especially apt in complex commercial cases, hence the increasing use of written statements in the Court of Session, Commercial Court. A further perceived benefit of their use, is that they give each party to a case a better basis upon which to assess the strengths and weaknesses of their position prior to the evidence hearing taking place in court, and this may facilitate earlier settlement.
The increasing use of such statements has brought some uncertainty on the best practice in their preparation and use. In recognising this, the Commercial Court has recently produced a guidance note which addresses some of the issues which have arisen. The points below provide a summary of the note.
What is the purpose of statements?
The purpose of statements is to allow the court to hear cases expeditiously. They are more likely to allow hearings to be dealt with within the time allocated for them. They may also allow the length of time allocated to be shorter in the first place than would otherwise be the case. Obviously, there are cases where the use of statements is unnecessary or undesirable. However, parties can discuss the necessity of witness statements at a procedural hearing.
It is desirable that a witness who is speaking about events that may have occurred some time previously to have an opportunity to consider documents that he/she had seen at the relevant time prior to giving a statement. The witness should also be allowed to re-read his statement and the relevant documents before coming to court. This places him in the best position to give truthful evidence.
Parties are generally not obliged to provide supplementary statements. It is intended that these will only address significant issues raised in the opposing party’s witness statements that need to be rebutted. Judges will generally discourage supplementary statements that are made just for the sake of it.
Supplementing statements by oral examination in chief
It is not intended necessarily to have all evidence in chief presented solely in written form. In some cases where significant cross examination is foreseen, it may not be appropriate for a witness to simply adopt his/her statement and be subjected immediately to cross examination. It may be appropriate for the witness to present some ‘scene setting’, or to be taken to key documents, before being subject to cross examination.
The role of legal advisors
The basic principle here is that words should not be put into the mouth of the witness. The statement should only cover matters to which the witness can properly speak. In this situation, legal advisors should bear in mind that the witness may have to justify his statement during cross examination. Legal advisors should consider a draft statement very carefully. They should do the following:
- Check the relevant matters have been covered.
- Seek to clarify ambiguous statements.
- Ask the witness to address matters which they think he may be able to address.
- Show the witness documents that he might have seen at the time and ask him to comment.
- Give the witness the opportunity to reconsider what the statement says and to confirm its content before signing.
- Inform the witness that they may be cross examined on the statement in court.
When should statements be prepared/exchanged?
Normally parties will be ordered to exchange documents on which they wish to found at proof at a date not less than two weeks before they are appointed to lodge and exchange statements. This gives legal advisors the chance to peruse the documents before the statements are finalised. Legal advisors should make sure that they do not show the witness any other statements which have been obtained prior to their own statement being finalised. This is to ensure the witness is not influenced by the statements of other witnesses. In the rare case that a witness finalises a statement after the exchange of the statements of other witnesses, the solicitor tendering the statement should write to the court certifying that the witness has not been informed of the evidence of others. The statements of a party’s other witnesses and of the other side’s witnesses, may be disclosed to a witness after exchange of statements between the parties. After this, if the witness needs to expand on anything, a supplementary statement may be lodged. The purpose of this is to correct or qualify what the witness has already stated.
Signature and adoption of statements
Where the statement is an affidavit the witness should swear the affidavit in the normal way. A statement that is not an affidavit should include a declaration that the evidence is true to the best of the witness’s knowledge. The witness should confirm in the witness box that:
- The statement is his;
- After giving a statement, he has considered the terms of the statement and signed it; and
- That he adopts it as evidence.
If the witness is not called to give evidence
Section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 allows a person’s statement to be admitted as evidence of any matter of which direct oral evidence of that person would be admissible. If the court has ordered the preparation of a statement as a witness’s evidence in chief, it will normally not admit the statement in evidence if the witness is not made available for cross-examination. The court will admit the statement only if the parties agree the evidence or its admission or if a party makes an application for the evidence to be admitted and the court assents to that motion.
The Commercial Court’s guidance note provides welcome clarification of how to approach the preparation and submission of witness statements and their use in court. Nevertheless, parties will retain a degree of flexibility when it comes to leading evidence in chief which is to be welcomed. It will be for each party’s court representative (counsel or solicitor advocate) to decide whether or not they need to take oral evidence from any witness. Where the issue is one of credibility of reliability of the witness the court is likely to allow fairly extensive oral examination in chief. Statements will not be needed for expert witnesses, whose reports will stand as their evidence in chief.