10) Evidence Flashcards
Legal burden of proof - General rule
The legal burden of proof lies with the claimant and each fact must be proved unless it is admitted by the opponent. On a balance of probabilities (certainty of greater than 50%).
Legal burden of proof- Exceptions
Where the defendant in civil proceedings has been convicted of a relevant criminal offence. The burden of proof is reversed.
Legal burden of proof - Exceptions - Contributory negligence
Where the defendant must prove that the claimant’s failure to take care contributed to the damage suffered
Witness Statement - Definition
A person’s truthful own account of facts relating to issues arising in a dispute, which are within that person’s personal knowledge. The purpose of a witness statement is to inform the parties and the court of evidence a party intends to rely on, often at trial, in support of their case.
Witness statements - General rule
Any fact upon which a party intends to rely must be proved at trial by oral evidence. However in practice most of it is written evidence
Witness statements - Part 32 - Definition
If a party wishes to call a witness they must serve a witness statement on the other parties setting out all the facts which that witness would be allowed to give orally at trial.
Written witness summary
If the witness statement is difficult to obtain then the party can apply to the court without notice for an order to serve a written witness summary which will contain:
- The witness’s name and address
- The evidence the witness can provide if it is known
- The matter on which the witness would be questioned at trial
Witness statements - Formalities
- Must be headed with the title of proceedings and names of witnesses
- Witnesses address, occupation or description whether the statement is made as part of their employment or business
- Chronological sequence of events
- Should be written in first person
- Must indicate which statements are based on info. and belief naming source if possible
- Process by which it was made must be included e.g face to face with party’s solicitor
- Verified by a statement of truth
Rules of evidence - Relevance
Any evidence must be relevant. Irrelevant evidence is not admissible. Evidence from a witness of fact is admissible when it addresses relevant facts, namely those which are in dispute and which have to be proved by the party calling the witness.
Rules of evidence - Opinion - General rule
Opinion evidence is not admissible because the function of a witness is to give evidence of relevant facts from which the court can draw its own conclusions
Rules of evidence - Opinion - Exceptions
A witness may give a statement of opinion if made as a way of conveying relevant facts personally perceived by them. If this test is satisfied the evidence is admissible. The witness should list the facts that they saw which led them to reach their conclusion. The witness cannot draw any conclusion from their evidence. E.g they cannot say that the defendant’s speed was ‘too fast’.
Hearsay - Definition
Hearsay is:
- A statement made outside the court
- Which is repeated in court
- To prove the truth of the matter stated
It must be a relevant fact or an admissible opinion.
The crucial aspect is the purpose - the reason is to prove the truth of the words said. They’re not giving evidence of what they personally know.
Hearsay - Notice
- If the party intends to call the witness whose statement contains hearsay evidence they simply need to serve the other party with the statement
- The opponent must then decide whether to ask the court to order that the maker of the original statement attends for cross-examination or serve notice of intention to attack the credibility of the hearsay evidence
- If the party does not propose to call the witness to give oral evidence but instead intends to rely upon the witness statement itself the whole statement becomes hearsay
- If they’re not being called to give oral evidence the party must issue a hearsay notice that explains why they’re not being called to give oral evidence
Hearsay - Weight to be attached to it
Guidelines to assist judge in assessing the weight that should be attached:
1) Whether it would have been reasonable and practicable for the party adducing the evidence to have called the person who made the original statement as a witness. Only if the reason is a credible one is the statement likely to be given some weight.
2) Whether the original statement was made contemporaneously with the events in question so that the facts referred to in it are fresh in the memory of the person making it
3) Whether the evidence involves multiple hearsay
4) Whether any person involved had any motive to conceal or misrepresent matters
5) Whether the original statement was edited or was made in collaboration with someone else
6) Whether the circumstances suggest an attempt to prevent proper evaluation of the weight of the evidence
Hearsay - Notice - Failing to adhere
If a party does not comply with the notice requirements the hearsay is still admissible but the failure may be taken into account when assessing the weight to be given to it or when making a costs order at the end of the trial
