Part 6 – Preparing evidence for an application
In making an application, either within or outside the proceedings the official receiver must follow the procedure specified in the Insolvency Act 1986 and Insolvency Rules 1986 or the Civil Procedure Rules 1998. The official receiver may submit evidence by report (see paragraph 19.85), by witness statement (see paragraph 19.88) or by affidavit (see paragraph 19.83). A witness statement or report must be verified by a statement of truth (see paragraph 19.100). The official receiver’s witness statement or report will be filed in the High Court or the appropriate hearing centre of the County Court.
For all cases from 6 April 2010 the Insolvency (Amendment) Rules 2010 and Legislative Reform (Insolvency) (Miscellaneous Provisions) Order 2010 removed the requirement to verify information or documents by affidavit. The completion of an affidavit has been replaced with the requirement for information, documents or witness statements to be verified by a statement of truth.
An affidavit must be completed in pre 6 April 2010 insolvencies and disqualification proceedings where the claimant is not the official receiver, and is for example an insolvency practitioner. Further information on affidavits is contained in Annex B.
In the majority of cases the official receiver will file a report at court rather than a witness statement [Note 1]. Within insolvency proceedings a report may be filed in court:
The official receiver should exercise a high degree of care in preparing the report. Evidence contained in the report should be based on the facts obtained during the course of his/her enquiries and care should be taken to ensure the report will not mislead the court. When an opinion or belief is expressed, it should be identified clearly as such.
The official receiver’s report is treated as if it were a witness statement (see paragraph 19.88) [Note 4]. The official receiver should file his/her report (or witness statement if applicable) in court and serve a copy on the respondent not less than 14 days before the date fixed for the hearing. The respondent may oppose the application and file his/her own witness statement. Where he/she files a witness statement in court a copy must be served on the official receiver not less than 5 business days before the date of the hearing [Note 5].
Evidence, to the court, except at trial, must be in writing unless the Civil Procedure Rules 1998 or the court provide otherwise [Note 6]. A witness statement must comply with the requirements of Practice Direction 32 of the Civil Procedure Rules 1998 (see paragraph 19.89 to 19.93) [Note 7]. In insolvency proceedings the official receiver is allowed to submit his/her evidence by report (see paragraph 19.85). For most non-insolvency proceedings the official receiver will be required to submit a witness statement.
The witness statement should be headed with the name and number of the proceedings. At the top right hand corner of the first page there should clearly be written:
Where the official receiver includes an exhibit with his/her witness statement it should be verified and identified by him/her and remain separate from the witness statement [Note 9]. Where the official receiver refers in his/her witness statement to an exhibit or exhibits, he/she should state ‘I refer to the (description of exhibit) marked …‘ [Note 10].
The official receiver’s witness statement must be written, if practicable, in his/her own words and be expressed in the first person [Note 11]. The witness statement should include:
The official receiver must be very careful when making a witness statement as proceedings for contempt of court may be brought against the official receiver if he/she makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth [Note 13]. The witness statement should usually follow the chronological sequence of events or matters to be dealt with. Each paragraph of a witness statement should, as far as possible, be confined to a distinct portion of the subject [Note 14].
Hearsay evidence is defined as “a statement made otherwise by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated”. Hearsay evidence is generally admissible in civil proceedings [Note 15]. Notice of hearsay evidence is usually given by the service of a witness statement containing it [Note 16]. Where the case goes to trial and the party is relying on hearsay evidence and does not intend to call the person as a witness he/she must give the reason why [Note 17]. It is a matter for the court, after considering the statutory guidance, as to what weight is placed on hearsay evidence [Note 18].
For a witness statement to be filed in court it should:
The court may direct that a witness statement in a foreign language be filed in court. The party wishing to rely on the witness statement must file in court the original and a translation, verified by the translator, [Note 20].
Evidence may be provided by a person who is unable to read or sign a witness statement. In such cases the witness statement must contain a certificate made by an “authorised person”. An authorised person is a person able to administer oaths and take affidavits but need not be independent of the parties or their representatives [Note 21].
The authorised person must ensure that:
The authorised person must sign a certificate which states [Note 23]:
‘I certify that I [name and address of authorised person] have read over the contents of this document and the declaration of truth to the person signing the document [if there are exhibits add ‘and explained the nature and effect of the exhibits referred to in it’], who appeared to understand (a) the document and approved its contents as accurate and (b) the declaration of truth and the consequences of making a false declaration, and made his / her mark in my presence.’
Any alteration to a witness statement must be initialled by the person making the statement or by the authorised person (see paragraph 19.95) [Note 24]. A witness statement which contains an alteration that has not been initialled may be used in evidence only with the permission of the court [Note 25].
A witness statement must include a statement by the intended witness that he/she believes the facts in it are true [Note 26]. The statement of truth (see paragraph 19.100) should read “I believe that the facts stated in this witness statement are true” and be followed by the witness's signature [Note 27]. If the person making a witness statement fails to verify it by a statement of truth, the court may direct that it shall not be admissible as evidence [Note 28]. Alternatively the court may order the person to verify the document [Note 29].
The Civil Procedure Rules practice direction on statements of truth lists the documents which should be verified by a statement of truth, including witness statements, certificates of service and applications for charging orders [Note 30]. A statement of truth is a statement made by a party to the legal proceedings that he/she believes the facts stated in the document are true [Note 31]. The person signing the document must sign in his/her own name (together with their position, if appropriate - for example where a legal representative is signing on behalf of a client) and print their full name clearly beneath the signature [Note 32]. A statement of truth may be contained in the document it verifies or in a separate document. A statement of truth which is a separate document must be headed with the title of the proceedings and clearly identify the document to which it relates [Note 33]. Statutory forms used in insolvency proceedings include a statement of truth were applicable. Further information and guidance can be found in the CPR Practice Direction 22.
The requirements for filing and service of witness statements within insolvency proceedings are explained in paragraph 19.87. For legal action taken by the official receiver outside of the insolvency proceedings the filing and service of witness statements will be decided by the court as part of the case management under the Civil Procedure Rules 1998 (see paragraph 19.20) [Note 34].
Within insolvency proceedings the court may, on the application of any party, order the attendance for cross-examination of the person making the witness statement [Note 35]. Where, the person does not, or cannot, attend in accordance with the order, that person’s witness statement must not be used in evidence without the permission of the court [Note 36]. In all other proceedings a person submitting a witness statement may be called for cross-examination at the discretion of the court [Note 37].