Civil evidence, Civil Procedure, Witness statements
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to exhibits and useful guidance in relation to the use of exhibits at trial.
The rules governing exhibits are in Practice Direction 32. The rules for exhibits are identical for affidavits and witness statements (I will refer to witness statements throughout).
IMPORTANT POINTS TO NOTE
There are a few things to note:
1. The top right hand corner of the witness statement must give the identifying initials and number of each exhibit referred to (3.2.(4).
2. 4.3 Where a deponent:
(1) refers to an exhibit or exhibits, he should state‘there is now shown to me marked ‘…’ the (description of exhibit)’, and
(2) makes more than one affidavit (to which there are exhibits) in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each affidavit.
(3) When exhibits (or any documents) are mentioned in the witness statement the reference to these documents must be put in the margin or in bold text in the body of the witness statement (6.1(7).
(4) An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement (18.3)
(5) Where a witness refers to an exhibit or exhibits he should state “I refer to the (description of exhibit) marked…” (17.4).
(6) Where a witness makes more than one witness statement to which there are exhibits in the same proceedings, the numbering of the exhibits should run consecutively through and not start again with each witness statement (18.6)
The rules relating to exhibits to witness statements are the same as those relating to exhibits to witness statements.
Manner of exhibiting documents
11.1 A document used in conjunction with an affidavit should be:
(1) produced to and verified by the deponent, and remain separate from the affidavit, and
(2) identified by a declaration of the person before whom the affidavit was sworn.
11.2 The declaration should be headed with the name of the proceedings in the same way as the affidavit.
11.3 The first page of each exhibit should be marked:
(1) as in paragraph 3.2 above, and
(2) with the exhibit mark referred to in the affidavit.
12.1 Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top, and firmly secured.
12.2 When a bundle of correspondence is exhibited, the exhibit should have a front page attached stating that the bundle consists of original letters and copies. They should be arranged and secured as above and numbered consecutively.
13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.
13.2 Court documents must not be exhibited (official copies of such documents prove themselves).
13.3 Where an exhibit contains more than one document, a front page should be attached setting out a list of the documents contained in the exhibit; the list should contain the dates of the documents.
Exhibits other than documents
14.1 Items other than documents should be clearly marked with an exhibit number or letter in such a manner that the mark cannot become detached from the exhibit.
14.2 Small items may be placed in a container and the container appropriately marked.
15.1 Where an exhibit contains more than one document:
(1) the bundle should not be stapled but should be securely fastened in a way that does not hinder the reading of the documents, and
(2) the pages should be numbered consecutively at bottom centre.
15.2 Every page of an exhibit should be clearly legible; typed copies of illegible documents should be included, paginated with ‘a’ numbers.
15.3 Where affidavits and exhibits have become numerous, they should be put into separate bundles and the pages numbered consecutively throughout.
15.4 Where on account of their bulk the service of exhibits or copies of exhibits on the other parties would be difficult or impracticable, the directions of the court should be sought as to arrangements for bringing the exhibits to the attention of the other parties and as to their custody pending trial.
(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 (18.3)
(4) Where a witness refers to an exhibit or exhibits he should state “I refer to the (description of exhibit) marked…” (17.4).
(5) Where a witness makes more than one witness statement to which there are exhibits in the same proceedings, the numbering of the exhibits should run consecutively through and not start again with each witness statement (18.6)
EXHIBITS NEED NOT BE DUPLICATED IN THE TRIAL BUNDLE
There is useful guidance at paragraph 8 of Appendix 10 of the Chancery-Guide.
Witness statements very often refer to documents. If there could be any doubt as to what document is being referred to, or if the document has not previously been made available on disclosure, it may be helpful for the document to be exhibited to the witness statement. If, to assist reference to the documents, the documents referred to are exhibited to the witness statement, they should nevertheless not be included in trial bundles in that form: see Appendix 6, paragraph 4. If (as is normally preferable) the documents referred to in the witness statement are not exhibited, care should be taken in identifying them, for example by reference to the lists of documents exchanged on disclosure. In preparation for trial, it will be necessary to insert cross‑references to the trial bundles so as to identify the documents: see Appendix 6, paragraph 24
THE GUIDANCE AT APPENDIX 6, PARAGRAPH 24
“Witness statements, affidavits and expert reports
1 Where there are witness statements, affidavits and/or expert reports from two or more parties, each party’s witness statements etc. should, in large cases, be contained in separate bundles.
2 The copies of the witness statements, affidavits and expert reports in the bundles should have written on them, next to the reference to any document, the reference to that document in the bundles. This can be done in manuscript.
3 Documents referred to in, or exhibited to, witness statements, affidavits and expert reports should be put in a separate bundle and not placed behind the statement concerned, so that the reader can see both the text of the statement and the document referred to at the same time.
4 Backsheets to affidavits and witness statements should be omitted.”
EXHIBITING DOCUMENTS IS NOT ESSENTIAL
Always consider whether it is necessary to exhibit the document at all. In many witness statements (particularly those prepared for trial, it is not not). In the Handbook for Litigants in Person (which was written by six judges) it is said that exhibiting documents is not always essential.
“11.15 A witness statement may refer to one or more documents; it is often important that it does. By the date of exchange of witness statements all relevant documents should have been disclosed, but if a document not previously disclosed is referred to in a witness statement the opposing party may require disclosure of it. It is a common practice amongst solicitors to attach to the witness statement copies of all documents referred to in that witness statement. 7 This is not necessary where it is clear what document is being referred to, and if a proper list of documents has been served by the party it is perfectly sensible to save the copying and refer, for example, to ‘the invoice no.35 of the Claimant’s list of documents.”