In the witness box you must tell the “whole” truth, but when signing a statement of truth all you do is certify that you believe the (conveniently helpful) facts which you have decided to mention in your witness statement are true (PD 22.2).
What about all those rather unhelpful facts which you know but have decided not to divulge in your witness statement? Why doesn’t the statement of truth wording make any mention of the whole truth?
Unlike CPR 22, the requirement that witness statements “must contain the truth, the whole truth and nothing but the truth on the issues covered” is included in the Chancery Guide (see Appendix 9, paragraph 6 and paragraph 7.9.5 of the Queen’s Bench Guide). Having differing rules on the same issue seems somewhat unsatisfactory where it relates to a topic that can concern an individual’s liberty.
It appears that if you include an irrelevant lie in a witness statement you could end up in prison (see CPR 32.14). However, if your opponent’s witness statement leaves out a large number of facts he knows will destroy his case, probably nobody will bat an eyelid. The opponent might not fare well on cross-examination, but how many cases reach the cross-examination stage? Very few. So the opponent will be fully aware that he’s unlikely to face any tough questioning on what he has written in his witness statement. Perhaps this is why so many cases settle just before the witness evidence stage of a trial.
The official absence of the phrase “the whole truth” in statements of truth under CPR 22 is particularly odd when compared with the pretty comprehensive CPR 31 documentary disclosure obligations, which require parties to reveal emails, text messages and even voicemail messages that harm their own case (see CPR 31.6(b)(i)).
I believe the time has come to be honest about statements of truth. So I’ve come up with some proposed new wording to insert at the end of witness statements:
“I believe that the facts stated in this witness statement are true, but let’s get real: we both know there are many other facts I’ve kept quiet about, so really this document isn’t worth the paper it’s written on, even though it has cost thousands of pounds to draft (which hopefully you’ll end up paying).”