The English Courts are almost unique in Europe, placing a very high value on oral testimony from witnesses of fact as part of litigation. In many instances, a case may be won or lost over the credibility of a key witness.

Having said that, this is not always the case. It is entirely possible to rely on a witness’ written statement as “evidence in chief” and your witness may not need to be cross-examined by the Advocate (either a Solicitor, Solicitor-Advocate or Barrister) acting for the other party to the dispute.

It is also likely that your witnesses will know whether or not they are needed to give evidence at Court at a relatively early stage in the case. So, having identified who your witnesses or going to be or, should you be called as a witness yourself, what happens next?

Witnesses should be willing to voluntarily attend at Court to give evidence. However, in practice many witnesses who were perfectly willing to provide a statement to assist in the preparation of a case may undergo a change in opinion when it comes to actually standing up in court, which remains a sobering prospect.

This fear is exacerbated when you consider that witnesses can be forced to attend at court to give evidence if you absolutely need them to. Litigants can serve a Witness Summons, a document requiring a witness either to attend at Court in person or produce documents. Should they refuse to do either, they will be in contempt of court and liable to a fine or even, in extreme circumstances, imprisonment (Although this will only apply to cases in the High Court.)

This may seem like taking a sledgehammer to crack a nut, and it should be borne in mind that forcing a witness to do anything, let alone attend at a Trial, could lead to the evidence they provide being less than satisfactory. However, it highlights a very important practical issue when preparing a case or offering to provide a witness statement in a case before the courts: make sure that the witness is aware that there is every chance that not only will they have to give a statement, they may well have to stand up in court and be cross-examined on what they have said.

Witnesses must know what they’re letting themselves in for. Unlike the United States system, only one civil action enjoys the right to a jury trial in English Law – Defamation. Unless you or your witness has been part of a Jury in a criminal trial, it is very difficult to appreciate the atmosphere in an English Court, which is, ultimately, part of an adversarial system. The best advice for anyone due to attend at court as part of any case is to spend an afternoon watching either a civil or criminal hearing at which witnesses give evidence; most local courts will agree to visitors in the public gallery.

Whilst the “batting order” of the Trial itself is designed for flexibility, it should begin with the Claimant’s Advocate making an opening speech, the Claimant themselves giving evidence in the witness box, the Claimant’s Advocate presenting evidence via examination of their Witnesses, and then the Defendants going through exactly the same process before each party gets a chance t make a closing speech, after which Judgment i usually given and any necessary orders made.

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