Well-drafted statements can help lead to success

In his second article on the value of witness statements, Anthony Page, of HBJ Gateley Wareing, says it's wise to take a sensible approach.

The potential benefits of using witness statements to support a party's case have been considered previously. This article will highlight a number of points to bear in mind when drafting them.

It must be acknowledged that many of the construction projects undertaken in this part of the world are of a formidable size and complexity. More often than not this will mean that many people will have worked on a project. It is therefore important to ensure that the correct person is providing the witness statement.

Remember, it is the first-hand experience of a witness of fact that is important, not the person's position within the company. Clearly, a statement from someone who does not have adequate knowledge of the project is of little use, regardless of the fact that they may be very senior. This is a step that is often overlooked.

Once the correct person has been identified, if they are not going to draft the statement themselves, the interviewer should prepare a bundle of relevant documents for them to consider. This is particularly important if the events occurred some time ago.

The documents should be regularly referred to whilst interviewing the witness as relevant documentation from that time can help them to remember the relevant facts.

Given the multicultural nature of this region, translation services may also be required. This may be needed whilst the witness is being interviewed to ensure that relevant details aren't lost. In such circumstances it will also be appropriate for the written statement to be translated so that the witness fully understands and approves its content.

It must be appreciated that the statement needs to comprehensively address all of the relevant issues. This is important as the witness may be prevented from calling on additional information at any subsequent hearing to prevent "trial by ambush." Irrelevant information or comments on legal principles should not appear in the statement.

The statement should also be drafted in the witness's own words. It is easy to give in to the temptation to improve the wording of a statement to reflect words that the interviewer would have used, rather than those actually used by the witness. But this will only adversely affect the authenticity of the statement and may create problems if the witness is later required to provide oral evidence.

As a general guideline, the witness statement should provide details of the following:

• Something the witness saw

• Something the witness did

• Something the witness said or heard at a meeting or during a telephone conversation

• A document the witness prepared and sent off

• A document the witness received and acted upon

It is advisable to draft the witness statement in the past tense as the witness will be giving evidence on events that have already occurred. Issues should generally be addressed in chronological order.

Statements should also refer to the time, place and the personal experience that they relate to. This puts the evidence in context and distinguishes it from the formal legal submissions. It is also sensible to ensure that the statement is divided into numbered paragraphs, with individual paragraphs addressing a particular point.

The witness should indicate which statements are made from their own knowledge and which are matters of information or belief from other sources. For example, it is good practice to state words to the effect: "The matters set out below are within my own knowledge, except where I indicate otherwise." In the event that a matter is outside the direct knowledge of the witness they should confirm this by using phrases such as "I was told by..." or "I believe that...".

However, the witness statement should be restricted to matters that the witness could readily speak about if questioned at a hearing. It is very important that statements made are true. Embellishments or exaggerations are usually discovered and can severely damage a party's case.

In summary, it is useful to remember the following tips:

• Firstly, ensure the correct person is providing the statement

• Ensure that all of the relevant documents are put before the witness to assist with their recollection of events

• Address all of the issues comprehensively so that all of the evidence required is before the tribunal

• Draft the statement in the words of the person providing it

• Follow the sequence of events in a chronological order

• Use paragraphs and deal with issues in a consecutive manner

• Ensure that the witness statement is accurate and attach a statement with wording such as, "I believe that the facts in this witness statement are true"

• Attach relevant documents as appendices to the statement

Following the above guidelines will help to ensure that his witness statement fulfils its purpose and assists with the proper resolution of the dispute.

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