K15.3. Greater flexibility in the treatment of witness
statements
| 480. |
If a witness will not be allowed to add to his
witness statement, or if he will be criticised if he needs to correct any errors or
ambiguities in it, conscientious legal advisers will quite properly consider it their duty
to make the statement as comprehensive as possible, covering numerous possible lines of
inquiry and minutely checking the statement for errors. Lord Woolf suggested that these
concerns were a principal reason for the excessive detail found in witness statements.
(Note 429) |
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| 481. |
It follows that such fears need assuaging to
encourage abatement of the excesses. A change in the court's approach is required :- |
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"If the courts are
flexible about allowing a reasonable degree of amplification of witness statements at
trial, then they can expect the lawyers to be less concerned to draft absolutely
comprehensive statements. This is not to be taken as encouragement deliberately to omit
relevant material, but simply to rein back the excessive effort now devoted to gilding the
lily." (Note 430) |
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| 482. |
Although a witness is still expected to give
evidence confined to what is fairly within his statement, the desired flexibility is
provided for by CPR 32.5(3) and (4) which are in the following terms :- |
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"(3) |
A witness giving oral
evidence at trial may with the permission of the court - |
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(a) |
amplify his witness
statement; and |
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(b) |
give evidence in
relation to new matters which have arisen since the witness statement was served on the
other parties. |
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(4) |
The court will give
permission under paragraph (3) only if it considers that there is good reason not to
confine the evidence of the witness to the contents of his witness statement." |
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| 483. |
The rule in the HCR is contained in O 38 r
2A(7)(b) and is somewhat narrower. It provides :- |
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"...... where the
party serving the statement does call such a witness at the trial - |
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(b) |
the party may not
without the consent of the other parties or the leave of the Court adduce evidence from
that witness the substance of which is not included in the statement served, except- |
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(i) |
where the Court's
directions under paragraph (2) or (17) specify that statements should be exchanged in
relation to only some issues of fact, in relation to any other issues; |
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(ii) |
in relation to new
matters which have arisen since the statement was served on the other party ......" |
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Readers are consulted as to whether a rule
providing for greater flexibility along the lines of CPR 32.5(3) and (4) should be
adopted: Proposal 37. |
Notes
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