WITNESS STATEMENTS AND SUMMARIES IN
CONTEXT
What is a witness statement?
• The content of the examination in chief of the witness, when adopted at the trial. •
All the evidence the witness would have said if he/she had stood in the witness box
and was being asked questions in examination in chief.
Form of witness statements
29.5 (1) A witness statement must –
(a) be dated;
(b) be signed or otherwise authenticated by the intended witness;
(c) give the name, address and occupation of the witness;
(d) include a statement by the intended witness that he or she believes the statements
of fact in it to be true;
(e) not include any matters of information or belief which are not admissible or,
where admissible, must state the source of any matters of information or belief;
(f) so far as reasonably practicable, be in the intended witness’ own words; and
(g) sufficiently identify any document to which the statement refers without repeating
its contents unless this is necessary in order to identify the document.
(2) The court may order that any inadmissible, scandalous, irrelevant or otherwise
oppressive matter be struck out of any witness statement.
What is a witness summary?
• In TT, EC, Bdos – a witness summary is a summary of the evidence, so far as is
known, which would otherwise be included in a witness statement; or if the evidence
is not known, the matters about which the party serving the witness summary will
question the witness.
Witness summaries
29.6 (1) A party who is required to provide and is not able to obtain a witness
statement may serve a witness summary instead.
(2) The party who serves a witness summary must certify on the witness summary the
reason why a witness statement could not be obtained.
(3) A “witness summary” is a summary of the –
(a) evidence, so far as is known, which would otherwise be included in a witness
statement; or
(b) matters about which the party serving the witness summary proposes to question
the witness, if the evidence is not known.
(4) Unless the court orders otherwise, a witness summary must include the name and
address of the intended witness or other sufficient means of identifying the intended
witness.
(5) A witness summary must be served within the period in which a witness statement
would have had to be served.
(6) Where a party provides a witness summary, so far as practicable, rules 29.4
(requirement to serve witness statements), 29.7 (procedure where one party does not
serve witness statements by date directed), 29.8 (witness to give evidence unless
court otherwise orders) and 29.9 (amplifying witness statements at trial) apply to the
witness summary.
PREPARING THE WITNESS STATEMENT
Ramona A Stobbart-Owens v Tasma C Silk Civ App No P042 of 2016 – “There
is no express requirement that all documents referred to must be attached to the
witness statement. The critical question therefore is whether, although the Defendant
did not attach any documents to her witness statement the documents relied on to
support her claim to an equitable interest were sufficiently identified therein. It is
clear from paragraph 4 of the Defendant’s witness statement that she has sufficiently
identified these documents by reference to her Defence and Counterclaim and by
pointing out that they are exhibited to her Defence and counterclaim. The defence
contains a certificate of truth and may therefore be considered as evidence.
Accordingly, there is no merit in the contention that the Defendant did not provide
evidence of her expenditure’
Mukesh Rampersad and Another v Ramkarran Ramparas and Another - Civ
App No P181 of 2015 / CV 2013–04946 – cutting and pasting witness statements –
paragraphs [125] – [140]
“132. It is clear that the copying of witness statements is frowned upon. Notably, it is
further frowned upon when no explanation is given for the same and in this case, not
only was no explanation given but the second named claimant and the witness, Mrs.
BadriRampersad attempted, unsuccessfully, to defend their statements even when
confronted in cross examination with the fact that their statements bore identical
words.
133. The court wishes to go further. This case is more than simply one of copy and
pasting. The court wishes to acknowledge that attorneys ought to manage their cases
properly and in accordance with the rules of court. Parties to actions are, more often
than not, laypersons, or even professionals, who are not attorneys and do not know
the rules and procedures of the court. These parties are then placed into this position
by their attorneys, upon whom they would rely for guidance on the legal
requirements. Too often, witness statements are in fact prepared by attorneys at law
replete with legalese which the witness is unable to understand or even to justify
because of the ir sheer inability to make sense of the words used on their behalf in
their witness statements. Even in a situation such as this where the parties said that
they prepared their witness statements independently, if even this were so, it ought to
be the duty of the attorneyat-law acting on their behalf to recognize the plain and
obvious plagiarism and to advise accordingly. Failure to do so would quite often
result in witnesses of fact being disbelieved because they cannot even understand or
defend their own witness statements since it was not in fact prepared or understood
by them. It is important to note a witness statement, once signed by a witness and
entered under oath at the trial, becomes that witness‟s evidence so that attempts by
the witness to distance himself/herself from the contents thereof in cross-examination
becomes increasingly difficult. That, to my mind, is a situation often created by the
attorneys who ought to be familiar with the rule quoted above and ought to ensure
compliance to the best of his/her ability.
134. Faced with the position such as that outlined in the preceding paragraph where a
witness statement is in fact prepared by an attorney at law and signed by a witness but
which does not incorporate their own words, a witness in the witness box is then face
d with a difficult dilemma. Having accepted the truth of its contents, the witness
would then lose all credibility if he/she were to then disavow himself/herself from the
contents thereof on the ground that he/she did not prepare it or, worse yet, merely
appended his/her signature without fully understanding it. Either way, the witness
comes off the worse for it.”
Anthony Goberdhan and Others v Joan E Goberdhan and Another - CivApp No
S139 of 2015 / CV 2014–00526 – the CPR was not designed to permit one witness
to piggy back on the evidence of another by reading that other witness’ evidence
and simply adopting it
“35. Neither does the evidence of the First Claimant independently support the
evidence of the Second Claimant, save and except for a statement at paragraph two of
his witness statement that the witness statement of the Second Claimant is true and
correct. This attempt by one witness to adopt the evidence of another is quite
unacceptable and improper. In the ordinary course of events, witnesses are to give
their evidence from their own recollection. The action of the First Claimant in this
case is tantamount to a witness sitting in court and listening to the evidence of one of
his fellow witnesses and then proceeding to testify under oath that he agrees with
everything that the other witness says and adopts same. This practice is to be frowned
upon. It cannot be the case that the CPR was designed to permit one witness to piggy
back as it were on the evidence of another by reading that other witness’ evidence and
simply adopting it. Part 29.5 (1) (d) CPR requires that the witness statement must so
far as reasonably practicable, be in the witness’ own words. The witness statement
offends this rule in relation to this issue. The rule is designed to ensure that there is no
collusion between witnesses and that each witness gives his independent,
uninfluenced recollection as far as is practicable. As a consequence this court gives
no weight to that which the First Claimant says in his witness statement on the first
issue.”
The Attorney General of Trinidad and Tobago v Jamal Sambury - Civ App No
P011 of 2014 (2014. 02.17) / CV 2011–02720 (2014.02.05) – identical witness
statements
In the case of Jamal Sambury v. The Attorney General of Trinidad and Tobago CV
2011-02720, Master Sobion stated at par 18 stated “Apart from the sheer volume of
the material that is common to both witness statements, when one analyses it
qualitatively, it was clear that this was not mere coincidence. There was a quite
deliberate exercise of “cut and paste” undertaken to create the Claimant’s witness
statement from the earlier statement. To my mind, it was implausible that two persons
could experience separate events involving different persons in such an identical
manner. Moreover when one looked at the shared grammatical errors, phrasing and
sequence of events, the similarities were so startling that the only reasonable
conclusion was that the Claimant copied and presented as his own sizable portions of
the witness statement of Jamal Fortune.”
The Sambury case was appealed and the Court of Appeal, in the transcript of the
hearing, also commented on the issue of identical witness statements. A reading of th
e transcript found Mendonca JA stating in relation to the identical witness statements:
“Yes. It is unlikely that the Master will accept much of his oral evidence. Let’s face it,
in these courts throughout everyday people try to mislead the court, none of them as
obvious as this. The fact is that they do try to mislead the court … This case has been
made relatively simple in that he has just plagiarized somebody else’s witness
statement in large parts, which would make his evidence as to that totally
unreliable.”
Smith JA stated: “It was significant that the claimant offered no explanation for this
obvious copying and use of another person’s witness statement. In the absence of that
I conclude that the copying was done deliberately and in an effort to mislead the
court …”
In dismissing the appeal Mendonca JA made these statements: “I think it should be
obvious from the exchanges during the course of the argument that we are not in
favour of allowing the appeal. We think that the Master carried out an appropriate
balancing exercise. She had to weigh the fact of an admitted loss against what she
found as an abuse in the context of copying parts of various witness statements…
Essentially, we agree with the conclusion of the Master and cannot say she is plainly
wrong.”
Lloyd Charles and Another v North West Regional Health Authority and
Another - CV 2008–02668 (2011.06.29) – part 29.5 provisions mandatory – witness
statements and witness summaries
“12. Part 29.5 (c) of the CPR above clearly specifies the form that a witness
statement must take and these provisions are mandatory. It is the intended witness,
not his attorney, whether acting on his instruction or not, who is required to sign his
statement and to certify that “he believes the statements of fact in it to be true”. This
witness statement must also be dated. There is no ambiguity in Part 29.5 of the CPR.
13. In the instant case, the two documents filed on 5th February, 2010, consisting of
10 and 16 pages respectively, were – • both signed by the attorney, not the intended
witnesses; • did not adhere to the prescribed form of witness statements; • contained
no certificates of truth by the intended witnesses themselves; and • in the case of the
first claimant, was undated.
It is thus my opinion that the two documents labelled “Witness Statement of Lloyd
Charles” and “Witness Statement of Dipnarine Mungal” signed by the claimants’
attorney and filed on 5 th February, 2010 are not witness statements.”
“14. The submission by the claimants’ attorney that these documents were in fact
“witness summaries” is also not accepted by this court. They do not take the form of
“witness summaries”. A “summary” by its very nature speaks to brevity and
conciseness and cannot masquerade as a “witness statement” or vice versa. By asking
this court to use its inherent discretion to declare that these documents are summaries,
although they do not take the form of summaries, so that an unless order would not
kick in against the claimants, is to say that this court must not strictly adhere to
provisions of the rules which are clearly and plainly expressed.1 Resort may be had
to the overriding objective to interpret the relevant provision under the CPR, with a
view to curing defects and ensuring a just and fair result, but it is not a panacea for all
ills in the drafting and conduct of litigation under the CPR.
…..
It is thus the ruling of this court that the two 10 and 16 pages documents labelled
“Witness Statement of Lloyd Charles” and “Witness Statement of Dipnarine Mungal”
respectively are also not ‘witness summaries’”
TIPS ON DRAFTING A WITNESS STATEMENT
• Test every sentence in the witness statement. • Use appropriate verbs. • Be
ACCURATE or TRUE TO YOUR WITNESS’ WORDS. • Cover all matters raised in
pleadings, disclosure and statement of issues (if any). • Structure the witness
statement as you would if the witness was giving the evidence on the stand. • Watch
your grammar and style – make it easy on the eye. • Always consider possible
evidential objections.
REQUIREMENT TO SERVE WITNESS STATEMENT
Requirement to serve witness statements
29.4 (1) The court may order a party to serve on any other party a statement of the
evidence of any witness upon which the first party intends to rely in relation to any
issue of fact to be decided at the trial.
(2) A statement of the evidence referred to in paragraph (1) is known as a “witness
statement”.
(3) A party’s obligation to serve a witness statement is independent of any other
party’s obligation to serve such a statement. •Rule 29.7 provides a procedure that may
be adopted when one party does not serve witness statements by the date directed.
(4) The court may give directions as to –
(a) the order in which witness statements are to be served; and
(b) when they are to be filed
REVIEW OF RELIEF FROM SANCTIONS
• WHAT IS THE SANCTION IMPOSED BY THE C.P.R. FOR THE FAILURE TO
FILE A WITNESS STATEMENT WITHIN THE TIME DIRECTED BY THE
COURT? • WHAT STEPS CAN YOU TAKE AFTER YOU HAVE FAILED TO
COMPLY WITH A DIRECTION FOR THE FILING OF A WITNESS
STATEMENT?
