1. Evidence of Fact Flashcards
How are witness statements confirmed?
Witness statements are confirmed by a statement of truth signed by the maker to confirm that the contents of the statement are true and accurate. If a witness lies, they risk contempt of court proceedings.
Power of the court to control evidence
The court may control evidence by giving directions on the issues it requires evidence for, the nature of the evidence it requires, and how the evidence should be presented. It can exclude admissible evidence and limit cross-examination.
General rule of how a fact which needs to be proved by evidence is proved
The general rule is that any fact needing proof by a witness is proved at trial by oral evidence and at other hearings by written evidence.
General rule for evidence in hearings other than trial
Evidence in hearings other than the trial should be by witness statements unless otherwise stated.
At hearings other than trial a party can also rely upon matters set out in
A party may rely on matters set out in their statement of case or application notice verified by a statement of truth at hearings other than a trial.
Order for XE
At non-trial hearings where evidence is in writing, any party may apply for permission to cross-examine the person giving evidence. If permitted but the person does not attend, their evidence may not be used unless allowed by the court.
Affidavit evidence - at trial and at hearing other than trial
Evidence must be by affidavit if ordered by the court or other rules. At non-trial hearings, a witness can choose to give evidence by affidavit, but additional costs are not recoverable unless the court orders.
Conduct of evidence by deposition
Subject to any specific directions contained in the order - the examination must take place in the same way as if the witness were giving evidence at a trial. If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent. The examiner may conduct the examination in private if he considers it appropriate to do so. The examiner must ensure that the evidence given by the witness is recorded in full. The examiner must send a copy of the deposition— (a) to the person who obtained the order for the examination of the witness; and (b) to the court where the case is proceeding. The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.
Use of deposition at a hearing
Deposition order under 34.8 may be used as evidence at a hearing unless the court orders otherwise. A party intending to put a deposition in evidence at a hearing must serve notice of their intention at least 21 days before the hearing. Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of rule 32.13 (availability of witness statements for inspection).
Requirement to serve witness statement for use at trial
A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally. The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
Use at trial of witness statements which have been served
If a party has served a witness statement and wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.
If a part who has served a witness statement does not call witness or put WS in as hearsay
any other party may put the witness statement in as hearsay evidence.
Witness summaries
A party who is required to serve a witness statement for use at trial, but is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead. This is a summary of the evidence if known, which would otherwise be included in a witness statement; or if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.
Consequence of not serving witness statement/summary
If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.
XE on a WS
Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement, whether or not the statement or any part of it was referred to during the witness’s evidence in chief.
Availability of WS for inspection
A witness statement which stands as evidence in chief(GL) is open to inspection during the course of the trial unless the court otherwise directs. Any person may ask for a direction that a witness statement is not open to inspection. The court will not do so unless it is satisfied that a witness statement should not be open to inspection because of— (a) the interests of justice; (b) the public interest; (c) the nature of any expert medical evidence in the statement; (d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or (e) the need to protect the interests of any child or protected party.
Witness summonses
A document issued by the court requiring a witness to Attend court to give evidence OR Produce documents to the court.
When must party obtain permission from the court for witness summons
A party must obtain permission from the court if they wish to Have summons issued less than 7 days before trial date, have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial, have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.
Time for serving a witness summons
General rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal. The court can direct otherwise.
Who is to serve a witness summons
A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself. Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.
Right of witness to expenses and compensation
At the time of the service of the witness summons, they must be offered or paid Travel expenses and Compensation for loss of time.
Amplification of witness evidence
Where a party’s witness is allowed to amplify, prejudice to the opponent should not be regarded routinely as remediable simply by an order for costs. A late, unjustified change of tack may be regarded as an injustice to the opponent which, in the light of the overriding objective (r.1.1) should not be permitted. A supplemental witness statement should be served where the witness proposes materially to add to, alter, correct or retract from what is in their original witness statement. Permission is required for this.
Use of WS where party fails to attend trial
Where the court proceeds with a trial in the absence of a party (r.39.3) who has filed witness statements, those statements are not hearsay evidence put in by them. Absent proper hearsay notice, in accordance with the court is not obliged to take account of them.
Notice to admit facts
A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice. Notice must be served no later than 21 days before trial. Where the other party makes any admission in response to the notice the admission may be used against him only— (a) in the proceedings in which the notice to admit is served; and (b) by the party who served the notice.
