R9.8

RIDR RULES : GUIDANCE TO WITNESSES

1. Introduction

Under the RIDR Rules witnesses and/or experts may be called by any of the parties to a dispute to give written and/or oral evidence to a hearing by the RIDR Committee, an arbitrator or an independent expert (collectively referred to as ‘the tribunal’).

These notes are intended to clarify the responsibilities of the witness, which term includes an expert retained by one of the parties to a dispute. A witness may be presenting evidence either of fact or of opinion.

2. Duty in providing evidence

The primary duty of the witness is to the tribunal to whom his evidence is given. The duty is to be truthful as to fact, honest as to opinion and complete as to coverage of relevant matters.

The witness’s evidence must be independent, objective and unbiased. In particular, it must not be biased towards the party which employs or is responsible for paying him. The evidence should be the same whoever is paying for it.

The duty applies as much to the preparation of a written witness statement as to any oral statements or answers at a hearing before the tribunal.

3. Reports

The witness’s written evidence must, unless the directions of the tribunal require otherwise, be presented in an organised and referenced way, with brevity, distinguishing where possible between matters of plain fact, expert observation and expert inferences.

The witness must, in preparing any written evidence, consider all matters material to the subject of the dispute.

The witness must, in providing written evidence:

(a) comply with any rules or directions of the tribunal to which the evidence is to be presented;

(b) personally sign and date the report or statement;

(c) include a declaration, which may be qualified:

(i) of belief in the accuracy and truth of the matters put forward;

(ii) that the report or statement includes any facts which the witness regards as being relevant to any opinion which he has expressed and that he has drawn to the attention of the tribunal any matter which might affect the validity of that opinion; and

(d) not use words, terms, and/or a form of presentation with the intention of limiting the ability of those likely to have sight of it from checking the correctness of any statement, calculation or opinion given.

4. Amendment of the contents of written evidence and/or reports

The witness must without delay notify the party calling him and, where appropriate, the tribunal, if after issue of the evidence he identifies a material inaccuracy or changes his view of a matter material to his stated opinion.

5. Advocacy

Where, in appropriate proceedings, the witness also assumes the role of representative, those roles must be clearly distinguished and declared to the tribunal and to the other party.

6. Evidence of opinion

The opinion given must be honest. It must also be objective, independent, unbiased and non-partisan. It should not be exaggerated or seek to obscure alternative views.

Where an opinion has been formed on the basis of incomplete knowledge of facts, that limitation should be stated fully in the evidence.

When experts retained by two or more of the parties to a dispute are instructed to meet to agree facts they may be instructed also to endeavour to agree opinions and, in such instances where opinions are not agreed, the reasons for disagreement should be recorded and reported.

Where a witness changes his opinion, for whatever reason, such change should be communicated immediately in writing to the party calling him, who shall be responsible for communicating it to the other parties and to the tribunal.

7. Oral evidence

If the witness is required to give oral evidence, such evidence will not normally be given under oath/affirmation but such oral evidence must nevertheless always be truthful and the witness’s honest opinion. If the witness does not know the answer to a particular question, he should say so rather than endeavour to give an answer which might prove to be incorrect or misleading.

Preparation is important and the witness should ensure that:

(a) all relevant files and documents are taken to the hearing; and

(b) he has reminded himself of the detail of any written evidence which he has previously submitted and also of the detail of the contents of files, as specific points may need to be addressed before and during the hearing.

The witness will be expected to reply to questions without reference to his witness statement or any other documents, except those handed to him for comment or those to which he asks permission to refer in order to refresh his mind on points of detail which he could not reasonably be expected to remember.

It is the witness’s responsibility to ensure that all documents necessary for proving his evidence are available. Where an expert has to refer to bulky material in his evidence or to video, film or other screen-based material, it is his responsibility to ensure that appropriate arrangements have previously been made to enable such material to be communicated to the tribunal.

When giving evidence the witness may be questioned by representatives of the parties to the dispute but all answers should be addressed to the tribunal. Concise answers are preferable but the witness should not allow advocates to prevent a full answer from being given.

Witnesses of fact will normally be asked to remain outside the room in which the hearing is taking place except when they are giving evidence, and to remain on the premises until they are released by the tribunal.

8. Hearsay evidence

A party wishing to rely on hearsay evidence must first serve notice on the other party and on the tribunal, giving particulars of this evidence.

The Civil Evidence Act 1995 sets out guidelines as to the weight to be given to hearsay evidence. Generally, the tribunal is required to have regard to any circumstances from which any inference can be drawn as to the reliability of the hearsay evidence. Specifically, it is required to have regard to whether:

(a) it is reasonable and practicable to produce the maker of the original statement;

(b) the statement was made contemporaneously with the occurrence or existence of the matter stated;

(c) the statement involves multiple hearsay;

(d) there is any motive as to concealment or misrepresentation;

(e) the statement is edited or is the result of collaboration; and

(f) the circumstances in which the evidence is produced are such as to suggest an attempt to prevent proper evaluation of its weight.

John Gott

RIDR Disputes Secretary/Secretary to the RIDR Committee

Central House

14 Upper Woburn Place

London WC1H 0HY (Phone 020 7554 0602) (Fax 020 7554 0603)

April 2001