Supporting Evidence on an Application

Part 4A

Supporting Evidence on an Application

December 2010

19.40 Substitution of statements of truth for affidavits

The Insolvency (Amendment) Rules 2010 (IAR) and the Legislative Reform (Insolvency) (Miscellaneous Provisions) Order 2010 (LRO) 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. This change applies to all cases from 6 April 2010.

Affidavits continue to be a requirement for proceedings brought under the Company Directors Disqualification Act 1986, e.g. disqualification proceedings where the claimant is not the official receiver. Information regarding affidavits generally has been retained in this chapter and can be found in paragraphs 19.51 to 19.57.

19.41 Statements of truth

A statement of truth is a statement made by the party putting forward a document, that he/she believes the facts stated in the document are true [Note 11].

Statutory forms used in Insolvency Proceedings have been amended by the IAR to include an appropriately worded statement of truth where appropriate. Where any other document is to be verified by a statement of truth, the procedure laid down in the Civil Procedure Rules 1998 (CPR) Practice Direction - Statements of Truth [Note 1], should be followed.

A statement of truth may be contained in the document it verifies or it may be in a separate document. A statement of truth which is not contained in the document which it verifies must be headed with the title of the proceedings and clearly identify the document to which it relates [Note 2].

The CPR practice direction on statements of truth lists the documents which should be verified by a statement of truth, this includes witness statements, certificates of service and applications for charging orders [Note 3]. Further information is also contained in the practice direction regarding those persons who may sign the statement of truth, for example the witness must sign the statement of truth verifying a witness statement, or where a party is legal represented, the legal representative may sign the statement of truth on his/her behalf [Note 4]. In all instances the individual who signs the statement of truth must sign in his/her own name and not that of his/her firm or employer. The person signing must also print their full name clearly beneath the signature [Note 5].

19.42 Witness statements

Where evidence is required by the Act or the Rules as to any matter, such evidence may be provided in the form of a witness statement unless [Note 6]:

in any specific case the Rule or the Act makes different provision; or
the court otherwise directs.

The Official Receiver is able to file a report instead of a witness statement - see paragraph 19.47. A witness statement is a written statement signed by a person which contains the evidence that the person would be allowed to give orally [Note 7]. Hearsay evidence is now generally admissible in civil proceedings [Note 8]. Notice of hearsay evidence is given by the serving of a witness statement containing it. It is a matter for the judge as to what weight is placed on such evidence [Note 9].

Extreme care must be taken by the official receiver when making a witness statement. A witness statement must contain the truth. Proceedings for contempt of court may be brought against a person 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 10].

19.43 Witness statement to be verified by a statement of truth

A witness statement must include a statement by the intended witness that he/she believes the facts in it are true [Note 11] [Note 12] .

To verify a witness statement the form of the statement of truth should be as follows:

'I believe that the facts stated in this witness statement are true', followed by the witness's signature [Note 13] [Note 14].

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 15]. Alternatively the court may direct that the person does verify the document [Note 16].

19.44 Preparation of a witness statement

The CPR Part 32, Practice Direction - Evidence, contains numerous requirements with regard to layout, form, content and statement of truth in relation to a witness statement, which should be followed by the official receiver.

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 [Note 17]:

the party on whose behalf it is made;
the initials and surname of the witness;
the number of the statement in relation to that witness;
the identifying initials of and number of each exhibit referred to, and
the date the statement was made].

The witness statement must be written in the intended witness’s own words and be expressed in the first person. It will include [Note 18]:

1. the full name, address and occupation of the witness. If the official receiver is asked to provide a witness statement, the office address of the official receiver should be sufficient; and

2. a statement as to whether the details in it are made from the witness's own knowledge and if not to identify which are matters of information or belief and the source.

An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement. Where a witness refers in the witness statement to an exhibit or exhibits, he should state ‘I refer to the (description of exhibit) marked …‘ [Note 19]

A witness statement should [Note 20]:

be produced on durable A4 paper with a 3.5cm margin;
be fully legible and should normally be typed on one side of the paper only;
where possible, be bound securely in a manner which will not hamper filing, or otherwise each page should be endorsed with the case number and should bear the initials of the witness;
have the pages numbered consecutively as a separate document (or as one of several documents contained in a file);
be divided into numbered paragraphs;
have all numbers, including dates, expressed in figures; and
give in the margin, or in bold text in the body of the statement, the reference to any document or documents mentioned.

It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should, as far as possible, be confined to a distinct portion of the subject [Note 21].

19.45 Inability to read or sign witness statement

Where a witness statement is made by a person who is unable to read or sign the witness statement, it must contain a certificate made by an authorised person, who is a person able to administer oaths and take affidavits but need not be independent of the parties or their representatives [Note 22].

The authorised person must certify:

that the witness statement has been read to the witness;
that the witness appeared to understand and approved its contents as accurate;
that the declaration of truth has been read to the witness;
that the witness appeared to understand the declaration and the consequences of making a false statement; and
that the witness signed or made his/her mark in the presence of the authorised person.

The following wording should be used for the certificate:

‘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.’

19.46 Alterations to witness statements

Any alteration to a witness statement must be initialled by the person making the statement or by the authorised person (see paragraph 19.45) [Note 23]. A witness statement which contains an alteration that has not been initialled may be used in evidence only with the permission of the court

19.47 Use of reports instead of witness statements

A report may be filed in court instead of a witness statement [Note 24]:

in any case, by the official receiver (whether or not he/she is acting in any capacity mentioned in sub- paragraph (b)) or a deputy official receiver, or
unless the application involves other parties or the court otherwise orders, by:

i. an administrator, a liquidator or a trustee in bankruptcy,

ii. a provisional liquidator or an interim receiver,

iii. a special manager, or

iv. an insolvency practitioner appointed under section 273(2).

19.48 Report to be treated as a witness statement

In the majority of cases the official receiver need only file a report with the court rather than file a witness statement or other evidence that requires verification by a statement of truth. In any case where a report is filed instead of a witness statement, it must be filed and served and treated for any hearing in court as if it were a witness statement [Note 25].

A high degree of care should be exercised in the making of any report. The evidence contained in the report should be accurately based on all the available and appropriate information obtained in the course of enquiries and care should be taken that the facts provided will in no way mislead the court. When an opinion or belief is expressed, it should clearly be identified as such.

19.49 Cross examination of witness and use of witness statement evidence

In any proceedings evidence may be given by witness statement (unless by any provision of the Act or Rules it is otherwise provided, or the court otherwise directs).The court may, on the application of any party, order the attendance for cross-examination of the person making the witness statement [Note 26]. Where, the person does not attend in accordance with the order, that person’s witness statement must not be used in evidence without the permission of the court [Note 27].

19.50 Filing and service of witness statements or reports

Unless the provision of the Act or the Rules under which the application is made provides otherwise, or the court otherwise allows [Note 28]:

if the applicant intends to rely at the first hearing on evidence in a witness statement, he shall file the witness statement with the court and serve a copy or copies on the respondent, not less than 14 days before the date fixed for the hearing, and
where a respondent to an application intends to oppose it and to rely for that purpose on evidence in a witness statement, he shall file the witness statement with the court and serve a copy on the applicant, not less than 5 business days before the date fixed for the hearing.

Where a report is being filed instead of a witness statement [Note 24] the same provisions for filing and service of the report apply as they do for a witness statement [Note 25].

19.51 Affidavits

An affidavit is a written, sworn statement of evidence. Evidence must be given by affidavit if this is required by the court or by any other rule or enactment. The CPR [Note 29] will generally allow evidence to be by a witness statement verified by a statement of truth (see paragraph 19.42) which does not have to be sworn. There is nothing to prevent a witness giving evidence by affidavit in a case where it is not a requirement, but the party may not recover the additional cost of making it from any other party unless the court orders

19.52 Preparation of an affidavit

Any affidavit that the official receiver may wish to rely on in support of an application should be prepared in accordance with the requirements set out in CPR Practice Direction 32 - Evidence.

The affidavit should be headed with the title of the proceedings. At the top right hand corner of the first page (and on the back sheet) there should clearly be written [Note 30]:

the party on whose behalf it is made;
the initials and surname of the deponent;
the number of the affidavit in relation to that deponent;
the identifying initials and number of each affidavit referred to; and
the date sworn.

The affidavit must be in the deponent's (the person who is giving evidence by affidavit) own words and should be expressed in the first person. The affidavit should commence 'I (full name) of (address) state on oath…’, and if the official receiver is giving evidence in his/her professional capacity the office address should be provided, together with the position held [Note 31].

An affidavit must indicate [Note 32]:

which of the statements made in it are made from the deponent's own knowledge and which are matters of information or belief, and
the source of any matters of belief.

Where a deponent [Note 33]:

refers to an exhibit or exhibits, he/she should state 'there is now shown to me marked …. the (description of exhibit)', and
makes more than one affidavit (to which there are exhibits) in the same proceedings, the numbering of exhibits should run consecutively throughout and not start again with each affidavit.

19.53 Jurat of an affidavit

The jurat of an affidavit is a statement set at the end of the document which authenticates the affidavit [Note 34].

It must [Note 35]:

be signed by all deponents;
be completed and signed by the person before whom the affidavit was sworn, whose name and qualification must be printed beneath his/her signature;
contain the full address of the person before whom the affidavit was sworn; and
follow immediately on from the text and not be put on a separate page.

19.54 Format of affidavit

An affidavit should [Note 36]:

be produced on durable A4 paper with a 3.5cm margin;
be fully legible and should be typed on one side of the paper only;
where possible, it should be bound securely in a manner which will not hamper filing, or otherwise each page should be endorsed with the case number and should bear the initials of the deponent and of the person before whom it was sworn;
have the pages numbered consecutively as a separate document (or as one of several documents contained in a file);
be divided into numbered paragraphs;
have all numbers, including dates, expressed in figures; and
give in the margin, or in bold text in the body of the affidavit, the reference to any document or documents mentioned.

It is usually convenient for an affidavit to follow the chronological sequence of events or matters dealt with. Additionally, each paragraph of an affidavit should as far as possible be confined to a distinct portion of the subject [Note 37].

19.55 Alterations to affidavits

Any alteration to an affidavit must be initialled by both the deponent and the person before whom the affidavit is sworn. An affidavit which contains an alteration that has not been initialled may be filed or used in evidence only with the permission of the court [Note 38].

19.56 Exhibits to affidavits

Exhibits should be produced and verified by the deponent and remain separate from the affidavit and should be identified by a declaration of the person before whom the affidavit was sworn. The first page of each exhibit should be marked in the same way as the affidavit and with the exhibit mark referred to in the affidavit [Note 39].

19.57 Use of affidavit evidence

The court may, on the application of any party, order the attendance for cross-examination of the person giving evidence in writing (which will include by affidavit and by witness statement). Where, after such an order has been made, the person in question does not attend, his/her evidence may not be used without the permission of the court [Note 40].

NOTE: Due to the updating and restructuring of the advice and guidance in this part, paragraph 19.58 no longer exists. However, to avoid confusion and the possible disruption of links to and from other parts of the Technical Manual, changes have not been made to the paragraph numbering in parts 5 to 10.

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Further Information

Notes to Chapter 19 Part 4A