Witness statements and other factual evidence—status, use and immunity

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Witness statements and other factual evidence—status, use and immunity
  • Burden of proof
  • Status of final witness statements
  • Status of draft witness statements
  • Admissibility of factual findings from other proceedings
  • Criminal convictions as evidence in civil proceedings
  • Judicial notice of factual evidence
  • Witness immunity from suit
  • Court specific guidance

Witness statements and other factual evidence—status, use and immunity

This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further Court specific guidance below.

In particular, this Practice Note provides guidance on the status of witness statements and draft witness statements. It looks at the position on the use of factual evidence in subsequent proceedings, as well as the admissibility of other tribunals’ factual findings. Judicial notice is also considered, as is witness immunity from suit, or ‘privilege’ under Stanton and Taylor v SFO, the burden of proof and possible reforms.

Burden of proof

Under English law, where a party asserts a particular fact which is not self-evident, it has to prove it (Robins v National Trust as cited in Ball v Ball). It has been recognised by the courts that the type of factual allegation will have a bearing on the evidence required to prove it, namely ‘the more serious, or the less likely, an allegation of fact appears to be, so the evidence in support of it will require to be correspondingly more cogent and persuasive’ (Ma v St George's Healthcare NHS Trust at para [11], cited in Serafin v Malkiewicz at para [87]).

If the party bearing the burden

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