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. Witness statements say in writing and in advance what the witnesses would say orally if they were in court. This makes sure that both sides know what their opponent’s evidence is before they get to a, potentially expensive and, stressful trial. It might mean that they are able to settle the case.

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.

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 believe that the facts stated in this witness statement are true. 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.’ This sentence is called ‘the statement of truth’ and is a necessary ending for a witness statement. (If your witness statement is written in another language, the statement of truth must also be written in that language).

Once you see the other side’s evidence, you may want to get your witness to comment on it. 

For more guidance on what to include, and how to layout the witness statement, buy our extended guide.

The order for directions in your case (the list of steps that the court sent to each side explaining what must be done and by what date) will tell you when you and the other side must exchange your witness statements. Typically, the court orders the sides 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 side'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 sides 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 side 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.

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 (except if it is a small claim for personal injury).

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.

When do I need expert evidence?

Think carefully before getting expert evidence. It is a costly step and, even though you are paying the expert's fees, the expert is there to help the court, not you. This means that they may say something that you do not like, and you cannot stop that happening. 

However, there are cases where 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.  Because experts must be impartial, 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. 

How to get expert evidence about your case

For our guidance on how to get expert evidence, buy the extended guide.

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.

Hot-tubbing - this is when you have two or more expert witnesses, and they give their evidence at the same time instead of (or as well as) being cross examined individually. Also known as Concurrent expert evidence or CEE.

Liability - proving that the problem is legally the defendant’s fault (they breached your legal rights or broke 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.

Disclaimer

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.

Acknowledgements

This guide was produced by Advicenow. We would like to thank everybody who commented on the guide including editorial teams at Thomson Reuters who kindly peer reviewed this updated version.

This guide was updated thanks to funding from the Ministry of Justice.