17 Evidence of fact

Question 1

Court can control evidence by DIRECTIONS to –

Answer 1

• Issues it requires evidence
• Nature of evidence
• Way evidence is placed before court

Court MAY limit cross-examination. MAY be made at case management or by trial judge.

At TRACK ALLOCATION, issues between parties should be identified + evidence prepared/disclosed

Question 2

When making case management decision, court MUST regard

Answer 2

available budgets of parties + costs.

Question 3

Court MAY give directions:

Answer 3

• identifying/limiting issues which factual evidence may be directed;
• identifying witnesses who may be called/whose evidence may be read
• limiting length or format of W/S

Question 4

Who can aply for PERMISSION TO xx maker of W/S used at interim hearing?

Answer 4

Any party may apply.

If maker of statement don’t attend XX as required by court order =evidence may not be used unless the court -) permission.

Question 5

is there an obligation to disclose W/S from witnesses not to be called at trial?

Answer 5

no

Question 6

Where court gives directions without holding CMC + it’s not aware of steps taken by parties other than exchange of SoC -) it’s general approach is to:

Answer 6

direct simultaneous exchange of W/Ss.

Norm = mutual exchange happens AFTER disclose + inspection, so people can comment.

Question 7

Sanction for not serving witness statements

Answer 7

If W/S or witness summary NOT served within time = witness may not be called to give oral evidence unless the court gives permission

Question 8

Format of Exchanged Statements

MUST HAVE:

Answer 8

• Formal heading with title of proceedings
• Top right-hand corner = state party
• Initials and surname of witness
• Whether first, second etc statement of witness
• References of exhibits
• Date it was made

Question 9

OPENING PARA of W/S must have:

Answer 9

1. Full name
2. Place of residence
3. Occupation
4. Fact he is party to proceedings or employee
5. Process which it has been prepared

If poss – should be witness’ own words. Expressed in first person. Each para confined to distinct subject.

All numbers + dates should be figures.

Docs referred should be formally exhibited

Question 10

do exchanged W/S always standard as witness’s evidence in chief?

Answer 10

Exchanged witness statements stand as the witnesses’ evidence in chief unless the court otherwise orders.

The court can allow witness evidence through video link.

Question 11

Use at trial of W/S which have been served

If:

1) served W/S; and
2) wishes to rely on evidence of witness who made statement

he must

Answer 11

call the witness to give oral evidence, unless court orders he puts the statement in as hearsay evidence.

Question 12

Where witness is called to give oral evid, his W/S SHALL

Answer 12

stand as evidence in chief, UNLESS ORDERED OTHERWISE. (NOT ALWAYS MUST).

Question 13

a party who served a W/S does not –

1) call the witness to give evidence at trial; or
2) put the W/S in as hearsay evidence,

What happens?

Answer 13

any other party may put W/S in as hearsay evidence.

This rule is where they wish to have the whole of a W/S, NOT merely some of it.

The “other party” is not entitled to put the W/S in evidence; the court retains a discretion.

Question 14

Use of W/S where party fails to attend trial

Answer 14

Where court proceeds with trial in absence of party who has filed W/Ss, those statements are not hearsay evidence put in by him and relief on at trial.

Question 15

Amplification of Witness’ Evidence

How to amplify evidence?

Answer 15

Witness may ask for PERMISSION to amplify evidence. If court considers = good reason not to confine witness to contents of disclosed statement, Witness MAY amplify + give evidence in relation to new matters arisen since statement served.

Question 16

Test for amplifying Witnesses evidence

Answer 16

1) Witness giving oral evidence at trial may with the permission of the court:
a. amplify his W/S; and
b. give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
2) (The court will give permission under paragraph only if -) good reason not to confine the evidence of the witness to the contents of his witness statement.

Where a party amplifies, prejudice to the other side is not normally remediable by an order for costs.

A late, unjustified change may be regarded as injust and in light of overriding objective, should not be permitted.

Question 17

Use of W/S where party fails to attend trial?

Answer 17

Where court proceeds with trial in absence of party who has filed W/Ss, those statements are not hearsay evidence put in by him and relief on at trial.

Question 18

Can a W/S be inspected?

Answer 18

A W/S which stands as evidence in chief is open to inspection during the course of the trial unless court directs otherwise.

Question 19

A party can ask for a direction that a W/S is not open to inspection.

The court will not make this direction, unless it is satisfied that W/S should not be open to inspection because of-

Answer 19

1) interests of justice;
2) the public interest;
3) the nature of expert medical evidence in statement;
4) nature of any confidential information (including personal financial matters) in statement; or
5) need to protect interests of child or protected party

The court may exclude from inspection words or passages in the statement.

Question 20

When must evidence be given by affidavit instead/in addition to W/S?

Answer 20

if required by court, provision, PD etc.

A witness can give evidence by affidavit at a hearing other than trial if he chooses where not required by court, provision, PD etc, but the party putting forward affidavit may not recover the additional cost of making it from any other party unless court orders otherwise.

Question 21

With or without notice required for witness summaries?

Answer 21

Without notice

Question 22

What happenes where:

Party who is required to serve W/S, but is UNABLE =

Answer 22

he MAY apply, without notice, for permission to serve witness summary.

Witness summary = summary of –

(a) evidence if known; or
(b) if evidence not known, matters which party serving the witness summary proposes to question witness.

Question 23

Unless ordered otherwise = witness summary must include

Answer 23

name + address of the intended witness.

Question 24

Unless ordered otherwise = witness summary must be served within

Answer 24

the period in which a witness statement would have had to be served.

Amplification and form of W/S is same as Witness summaries.

Question 25

If unable to obtain signed statements before the time prescribed for exchange may apply for permission to serve witness summaries instead of witness statements.

Must these be signed?

Answer 25

These can be UNSIGNED DRAFT STATEMENTS.

Question 26

When will a witness summary order be allowed?

Answer 26

Such orders only be granted if the party is unable to obtain the relevant witness statement.

Unless ordered otherwise = witness summary must be served, together with the order granting permission, within the period in which a witness statement would have had to be served.

Question 27

Consequence of failure to serve W/S or summary

Answer 27

If a W/S is not served within time, the witness may not be called to give oral evidence unless the court gives permission.

Question 28

Collateral Use of Disclosed Witness Statements

W/S may only be used for proceedings which it is served EXCEPT:

Answer 28

1) Witness give consent IN WRITING
2) Court gives permission
3) W/S put in evidence at hearing held in public.

Question 29

Witness summons requires:

Answer 29

1. To attend court to give evidence; or
2. Produce documents to court

Witness summons MUST be in relevant practice form. MUST be separate witness summons for each witness.

Question 30

When is a witness summons issued?

Answer 30

date entered on summons by court.

Question 31

Party must obtain permission from the court for a witness summons if:

Answer 31

(a) wants a summons issued less than 7 days before the date of the trial;
(b) wants a witness to attend court to give evidence or to produce documents on any date except date fixed for the trial; or
(c) wants a witness to attend court to give evidence or produce documents at any hearing except the trial.

Question 32

How is a witness summons issued?

Answer 32

• Issuing a witness summons is purely administrative provided it is issued at least 7 days before the start of the trial.

Question 33

Time for Serving a Witness Summons

Gen rule:

Answer 33

Witness summons binding if served at least 7 days before the date on which the witness is required to attend.

Court MAY direct witness summons shall binding although served less than 7 days before.

A witness summons which is served + requires witness to attend court is binding until the conclusion of the hearing.

Question 34

Who is to Serve a Witness Summons

Answer 34

Served by the court unless** party whose behalf it’s issued **indicates in writing, when asking for summons.

If court serves witness summons = MUST deposit, in court office, money to be paid or offered.

Question 35

Conduct Money

At the time of service of witness summons witness must be offered or paid –

Answer 35

(a) a sum reasonably sufficient to cover his expenses in travelling to and from the court; and
(b) such sum by way of compensation for loss of time

Question 36

Can a court issue a witness summons in aid of an inferior court or trianal?

Answer 36

Yes

Court which issued witness summons may set it aside.

‘inferior court or tribunal’ = any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.

= default power.

Question 37

What is a deposition?

Answer 37

Party may APPLY for order for person to be examined before the hearing takes place.

Person = deponent’;

Evidence = deposition’.

Question 38

An order shall be for deponent to be examined on oath before –

Answer 38

(a) a judge;
(b) an examiner of the court; or
(c) such other person as the court appoints.

Question 39

Deposition order may require:

Answer 39

production of any document that court considers necessary for purposes of examination.

Question 40

Deposition order must state:

Answer 40

Order must state:

1) date,
2) time and
3) place of the examination.

Question 41

Attendance: Conduct money and enforcement

At the time of service of order the deponent must be offered or paid –

Answer 41

(a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
(b) such sum by way of compensation

Question 42

Service of the Deposition

Examiner MUST send copy of deposition –

Answer 42

to any person who obtained order for examination; and

• court where case is proceeding

Party who obtained order MUST SEND EACH OTHER PARTY a copy of the deposition. NOT THE EXAMINER.

Question 43

Deposition

Conduct of the Examination

Except for directions, the examination MUST be conducted in

Answer 43

same way as if the witness were giving evidence at a trial.

Question 44

If all parties are present, what may the examiner do?

Answer 44

If all parties are present, examiner MAY conduct examination of person not named in the order if all the parties and the person to be examined consent.

Examiner may examine in private if “appropriate”. Examiner MUST ensure evidence given is recorded in full.

Question 45

FAILURE TO ATTEND deposition

Answer 45

If person served with order fails to attend/refuses to be sworn for examination or answer question/produce doc =====a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.

FAILURE = Court MAY order Costs.

When certificate is filed, party requiring deposition may APPLY to court for order requiring that person to attend or to be sworn or to answer any question or produce any document. It may be made WITHOUT NOTICE.

Question 46

Restrictions on use of Freezing Injunction Depositions

Where court orders party to be examined about his assets for purpose of any hearing, except trial, the deposition may only be used for purpose of proceedings it was made. EXCEPTION

Answer 46

1. By party who was examined
2. Party who was examined agrees
3. Court gives permission

• only applies to depositions about assets

Question 47

Notice of Intention to Use Deposition at Trial

Time limit:

Answer 47

Party intended to put in evidence a deposition at a hearing MUST serve notice of his intention at least 21 days before the day fixed for the hearing.

Question 48

Use of Deposition at Trial

Can a deposition ordered be given in evidence at a hearing?

Answer 48

Yes unless ordered ortherwise.

Court may require deponent to attend the hearing and give evidence orally.

Where a deposition is given in evidence at trial = treated as if it were a witness statement.

Question 49

Notice to Admit (formal admission)

Time limit: notice to admit =

Answer 49

no later than 21 days before the trial.

Question 50

Effect of Ignoring Notice to Admit

Answer 50

No immediate effects – nothing in CPR. Though potential costs order.

Question 51

Effect of making admissions

Where the other party makes admission in response to notice, admission = may be used against him only –

Answer 51

) in the proceedings in which the notice to admit is served; and

(b) by the party who served the notice.

Court MAY allow party to amend or withdraw any admission made on such terms as it thinks just. PERMISSION

Question 52

Authenticity of documents in list of documents:

Notice to Prove

General rule of authenticity:

Answer 52

A party shall be deemed to admit the authenticity of a document disclosed to him unless he serves notice that he wishes the document to be proved at trial.

Question 53

Authenticity of documents in list of documents:

Notice to Prove

Time limit: notice to prove:

Answer 53

Notice to prove must be served –

(a) by the latest date for serving witness statements; or
(b) within 7 days of disclosure of the document,

whichever is later.

Question 54

Authenticity of documents:

Evidence in proceedings other than at trial

Gen rule:

Answer 54

evidence at hearings other than the trial is W/S unless PD or other enactment requires.

Question 55

Who can sign a SoT or W/S?

Answer 55

SoT must be signed by –

1. in the case of a SoC, a response or an application
   
   1. the party or litigation friend; or
   2. legal representation on behalf of the party of LF; and
2. in the case of a W/S the maker of the statement.

False statements

= Contempt of court may be brought if he makes a false statement verified by SoT without an honest belief in its truth.