PI Brief Update

Plead it or Weep: The Pitfalls of Oral Evidence in an OIC - Georgina Pressdee, Temple Garden Chambers

24/11/25. OIC hearings can, at times, feel like a lawless landscape when it comes to witness evidence. This article seeks to clarify when a witness can and should be allowed to give oral evidence at an OIC hearing, with reference to the procedure set out in PD27B. All paragraph references are to PD27B.

Who Should be Giving Oral Evidence?

If a party intends for a witness (including the Claimant) to give evidence at an OIC hearing, they should list the witness in their Claim Form or Acknowledgement of Service (“the pleadings”). For Claimants, this requirement is located at paragraphs 2.4(d), 2.5(c), 3.4, 3.5(2), 4.4(1)(f), 4.5, 5.4(1)(f)/5.5(e), 6.4(1)(f) and 6.5(e)). For Defendants, it is located at paragraphs 2.10(2), 3.11(2), 4.10(2), 5.10(2) and 6.10(2).

What if their Evidence is Not in the Court Pack?

If a witness’s evidence is not contained in the Court Pack, it should be summarised and described in the pleadings with an explanation as to why it was not produced as part of the steps taken under the RTA Small Claims Protocol (paragraphs 2.7(2), 2.11(1), 3.8(2), 3.13, 4.7, 4.11(1), 4.11(2), 5.7, 5.11(1), 5.11(2), 6.7(2) and 6.11(1)). The evidence must also be filed with the pleadings or an explanation given as to why this is not possible (paragraphs 2.7(1), 2.11(1), 3.8(1), 3.13, 4.7, 4.11(1), 5.7, 5.11(1), 6.7(1) and 6.11(1)).

PD27B suggests that the Court’s permission is required to rely on such evidence, by establishing a procedure for the parties to seek it (paragraphs 2.6(3), 3.7(3), 4.6(4), 5.6(3) and 6.6(3)). This is also implicit within Sections 2, 4, 5 and 6, which permit the parties to rely on evidence contained in the Court Pack “unless the Court makes a different order” (paragraphs 2.13, 5.14, 4.13 and 5.14). There is more flexibility in Section 3, which permits any evidence (including oral evidence) “which the Court considers is necessary to determine the Claim” as an exception to the general rule that the parties are limited to witnesses whose evidence is within the Court Pack (paragraphs 3.16 and 3.17(1)).

The directions order should tell you whether permission has been granted. For Sections 2, 4, 5 and 6, the standard directions in Appendix B are likely to apply “where the Court considers that the dispute between the parties and the evidence required at a hearing are adequately set out in the relevant Court Pack” (paragraphs 2.12(3), 4.12(3), 5.13(3) and 6.13(3)). This includes the granting of permission to rely on the contents of the Court Pack (paragraph 1) and to file and serve (by a given deadline) additional evidence attached to the pleadings or an additional witness statement from a witness named therein (paragraph 2). The directions order may depart from this, because the Court retains a discretion to give non-standard directions (paragraph 2.12(4), 4.12(4), 5.13(4) and 6.13(3)). For Section 3, the standard directions in CPR r27.4(3) apply, with additional directions where a party seeks to rely on evidence not contained in the Court Pack (3.17(2)).

Does the Evidence Need to be in the Form of a Witness Statement?

The Court Pack must contain the documents set out in the applicable table(s) from Appendix C (paragraphs 2.6(1), 3.7(1), 4.6(1), 4.6(2), 5.6(1) and 6.6(1)), which includes “any witness statements uploaded to the Portal”. Whilst the tables do not themselves mandate the inclusion of a witness statement, the express purpose of the Court Pack is, “to provide in one set of documents all the facts and evidence on which both parties intend to rely”. “Evidence” is not defined in PD27B, which leaves scope to argue that it does not need to be a signed witness statement. PD27B stipulates only that the pleadings must be signed by a statement of truth (paragraph 1.10) and CPR r32.4 is disapplied by CPR r27.2(c).

Conclusion

With the exception of Section 3, PD27B makes clear that a witness should only be giving oral evidence if they have been listed in the pleadings and –

1. An account of their evidence has been provided as part of the steps taken under the RTA Small Claims Protocol (and should therefore be in the Court Pack); or
2. The Court’s permission has been sought (and granted) to file and serve it subsequently in line with the procedure in PD27B.

Unless the directions require it, whether that account needs to be in the form of a witness statement is up for debate.

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