3. When are witness statements exchanged?

3. When are witness statements exchanged? 

In an action commenced by writ of summons, the court is required under Order 38, rule 2A(2) of the Rules of the High Court (Cap. 4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”) to direct every party to serve written witness statements of oral evidence intended to be adduced at trial at the determination of a Case Management Summons. The court specifies the exact period within which service must occur. 

Under Order 38, rule 2A(4)(c) of the RHC or RDC, witness statements must be exchanged simultaneously between opposing parties on or before the court-ordered exchange date. This requirement ensures mutuality and fairness, and prevents either party from obtaining an unfair tactical advantage. 

Directions for sequential exchange will only be granted in very special or exceptional circumstances. 

The exchanged witness statements are served directly between solicitors. They are not automatically filed with the court unless the judge or master specifically orders filing. 

The time for exchanging witness statements cannot be extended by private written agreement between the parties. A formal court order or direction from the master is required. 

If one party is ready to exchange on the deadline but the opposing party is in default, the compliant party should not unilaterally serve its witness statements. Doing so would disclose its evidence to the defaulting party, who may then attempt to tailor its own statements in response. To preserve the principle of simultaneous exchange, the compliant party should instead apply to the court for an extension of time or for an “unless order” requiring the defaulting party to serve its statements by a fixed date, failing which that party will be barred from calling those witnesses at trial. For information about “unless order”, please refer to “If the opposing party does not observe the case management timetables and dates fixed by the court, or does not attend the case management conference, are there any sanctions against him?”. 

Under Order 38, rule 2A(10) of the RHC or RDC, a party who fails to comply with a court direction for exchanging witness statements is automatically debarred from adducing that evidence at trial unless the court grants express leave.