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Witness Statements in Scotland

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The President of Employment Tribunals (Scotland), Judge Susan Walker, has today issued new Presidential Guidance and a Practice Direction concerning the use of witness statements in employment tribunals in Scotland.  The documents cover four matters.

First, when it is desirable for judges to order witness statements be used (paragraph 6 of the Presidential Guidance lists nine factors). It’s pretty restrictive, clearly maintaining the presumption in Scotland that oral evidence in chief will usually be preferred (contrasting with England & Wales, where witness statements are the default position).

Second, if witness statements are to be used, rules on their format. It’s the obvious stuff: use headings, single sided, 1.5 or double spacing etc.. Unlike in England & Wales, there is also a requirement to set out in an introductory paragraph how the witness statement was taken (eg face to face interview with a representative, questions and answers by email, by the witness alone without any help, etc). That’s actually a really good idea and I’d like to see it adopted in England & Wales.

Third, some guidance on the content of witness statements (eg avoiding ambiguity) and reminders of advocates’ professional obligations.

Fourth, guidance on when to take witness statements as read, and whether/when to allow supplementary evidence.