13: Evidence

Question 1

What should any fact that needs to be proved at trial be proved by?

Answer 1

At public trial by a witness’ oral evidence.

Question 2

What are the types of evidence that can be used to make a finding of liability or award damages?

Answer 2

The types of evidence include documentary evidence, expert evidence, and witness evidence.

Question 3

What is the legal burden of proof in civil disputes?

Answer 3

The legal burden of proof is on the claimant, who must prove every essential element of the cause of action in their case in order to succeed.

Question 4

What does the principle of “res ipsa loquitur” mean?

Answer 4

“Res ipsa loquitur” means “the facts speak for themselves” and means that the claimant doesn’t need to prove it because it is so obvious.

Question 5

What is the standard of proof in civil cases?

Answer 5

The standard of proof in civil cases is on the balance of probabilities, meaning “more likely than not.”

Question 6

What is direct evidence?

Answer 6

Direct evidence is the oral evidence of the witness who has perceived the relevant facts or the production of a document.

Question 7

What is circumstantial evidence?

Answer 7

Circumstantial evidence is evidence that does not directly establish a fact but allows the court to deduce whether a certain fact did exist.

Question 8

What are the issues on which evidence is needed?

Answer 8

Typically, evidence is needed about liability, quantum, and defences.

Question 9

What is the court’s power to control evidence based on?

Answer 9

The governing statute is the Civil Evidence Act 1995 (CEA 1995).

Question 10

What does Part 32 deal with?

Answer 10

Evidence

Question 11

Who should give witness evidence?

Answer 11

Witness evidence should be given by a competent witness.

Question 12

What is meant by “There is no ‘property’ in a witness”?

Answer 12

Witnesses do not belong exclusively to any party.

Question 13

What is the form of witness evidence at trial?

Answer 13

Witness evidence at trial is usually oral evidence given in public unless the court gives permission otherwise.

Question 14

What is the form of witness evidence at hearings other than trial?

Answer 14

At hearings other than trial, the general rule is that evidence from witnesses is given in writing.

Question 15

What is an affidavit and when is it used instead of a witness statement?

Answer 15

An affidavit a sworn statement and is used in applications for search and freezing orders, parts of insolvency proceedings, and in applications for contempt of court.

Question 16

Are witness statements mandatory?

Answer 16

Yes, they are.

Question 17

What is a witness statement?

Answer 17

A witness statement is a written statement signed by a person which contains the evidence that person would be allowed to give orally.

Question 18

What happens if a witness statement is not served in respect of an intended witness within the time specified by the court?

Answer 18

That witness may not be called to give evidence orally unless the court gives permission.

Question 19

What should you do after preparing the witness statement draft?

Answer 19

Send the draft to the witness with a covering letter inviting them to read through the document carefully, make any amendments, approve if agreed, and sign the statement of truth.

Question 20

What should be explained to the witness regarding their statement?

Answer 20

Explain the importance of believing the contents of the statement to be true and that proceedings for contempt of court can be brought against witnesses who make false statements.

Question 21

What should the witness statement have on its top right face?

Answer 21

6 points top right:
1. Claimant or Defendant
2. Initials and surname of witness
3. The number of the statement
4. Initials of witness and no. exhibits attached
5. Date of statement
6. Date of translation

Question 22

What general form should a witness statement have?

Answer 22

Full name of witness, address, occupation
How the statement was prepared (e.g. face-to-face)
First person statement in their own words.
Statement of truth

Question 23

At an interim hearing, how is evidence usually given?

Answer 23

At an interim hearing, evidence is usually given in writing, rather than by oral evidence.

Question 24

What two things can be used to support interim applications?

Answer 24

Form N244 Application Notice endorsed with a statement of truth.
OR
Witness statement

Question 25

Who should make the witness statement for interim applications?

Answer 25

It is common for interim applications to be supported by a witness statement by a legal representative rather than a party.

Question 26

What should be included in the chronology of a witness statement for an interim application?

Answer 26

The chronology should include a brief overview of relevant facts or the progress of the case, making clear that the application is timely and justified.

Question 27

What are the filing and service requirements for witness evidence in respect of interim applications?

Answer 27

Witness evidence should be served unilaterally as soon as possible, at least 3 days before the hearing.

Question 28

What should be done to exhibits attached to a witness statement?

Answer 28

Exhibits should be verified and identified by the witness, and remain separate from the witness statement.

Question 29

What should you do when you receive your opponent’s witness evidence for an interim application?

Answer 29

Check the grounds for the application
prepare a witness statement in response
send a copy to the client and request further information or clarification
reassess the prospects of succeeding at the hearing
consider whether it is in the client’s best interests to brief counsel to attend.

Question 30

What should you do after receiving your opponent’s witness evidence for use at trial?

Answer 30

Review and compare it with your client’s evidence
identify inconsistencies
identify gaps
consider additional evidence
consult expert witnesses
reassess prospects
update cost estimates
handle hearsay issues
consider a Part 36 offer
seek counsel’s opinion
review strategy.

Question 31

What if witnesses decline to attend trial?

Answer 31

A witness summons can be issued to require their attendance.

Question 32

What should be done if a party has not been able to obtain a written statement from a witness?

Answer 32

Serve a summary of the expected evidence with the court’s permission. This application for permission is made without notice.

Question 33

What happens if a witness statement is not in the required form?

Answer 33

The court may disallow the use of the evidence and the associated costs. If the opponent includes inadmissible evidence, an application can be made to strike out offending passages.

Question 34

What if a party fails to comply with a court direction for the exchange of statements?

Answer 34

The court will issue a new direction. An extension of up to 28 days may be agreed. If not, an application should be made to the court.

Question 35

What is a witness summons?

Answer 35

A court-issued document requiring a witness to attend court to provide evidence.

Question 36

When is a witness compellable?

Answer 36

A witness is compellable if they can be made to give evidence even if unwilling. All persons in civil cases are compellable.

Question 37

What must be known to issue a witness summons?

Answer 37

The address of the witness and the witness must be within the United Kingdom. Summonses are only issued by the court.

Question 38

What expenses must the applicant offer to pay for the witness?

Answer 38

The applicant must offer to pay the witness’s expenses in attending court, known as conduct money, covering travel expenses and loss of time.

Question 39

How far in advance must a summons be served?

Answer 39

The summons must be served at least 7 days before the hearing.

Question 40

Under what conditions might a witness give evidence via video link?

Answer 40

Witnesses may give evidence via video link or other means if physical presence is unnecessary.

Question 41

What is the sequence of evidence for a witness at trial?

Answer 41

The sequence is sworn in (oath/affirmation), evidence in chief, cross-examination, re-examination, and judge’s questions.

Question 42

What happens if a witness refuses to answer questions at trial?

Answer 42

It constitutes contempt of court, leading to potential criminal penalties.

Question 43

How can a party handle hostile witnesses?

Answer 43

Apply for the judge to declare the witness hostile, allowing for cross-examination and presenting previous inconsistent statements.

Question 44

What should be included in a detailed letter to the client about their opponent’s witness statements?

Answer 44

Enclose the opponent’s statement, highlight salient points, underline arising issues, and suggest a meeting if necessary.

Question 45

What does written advice on evidence from counsel include?

Answer 45

It includes comprehensive guidance on further necessary matters, strengths of the case, prospects of success, and acceptable settlement terms.