1.9 Evidence Flashcards
What is hearsay?
Admissible (Civil Evidence Act 1995) > Weight based on 6 statutory factors
1) TP made statement
2) Another person gives oral evidence in court
3) Evidence of matters stated
What is required for hearsay to be used?
Notice of intent to adduce hearsay evidence
- Exchange WS (W attending court)
- Separate formal (W NOT attending court) > Hearsay evidence, reliance by party, reasons for not attending court
Letter of request to W in another jx > Give oral/written evidence
Witnes statement
- Comments re TP told person
- Multiple hearsay
- Tended in lieu/oral evidence (W signs statement, not attend trial)
What may party receiving notice of intent to use hearsay do?
Call statement maker > Cross-exam (within 14 days of notice)
Serve notice to attack W credibility + reasons (within 14 days of notice)
What is regarded as admissible evidence?
Logically probative/disprobative of matter requiring proof
Makes matter more/less probable
Supporting
- Core statements of case
- Contemporaneous case
- Expert/Witness evidence
=> Court can control evidence by giving directions
- Limiting issues requiring evidence
- Nature of evidence re such issues
- Manner of placing evidence before court
- Identifying Ws
- Limiting WS length/format
NOT (no specific rules) admissible
- Diary improperly obtained (but NOT exclude wholly otherwise disproportionate)
- WS mostly signed by D’s director > Abuse (W became director after events + not involved in matters)
What is the burden of proof?
Burden => Claimant to prove each issue/element of claim
Burden => Can shift to Defendant
- By statute (alleged breach of duty)
- D’s allegations asserted > C’s contributory negligence
What is the standard of proof?
Balance of probabilities
- More likely than not
What evidence can and cannot be used/relied on at trial to fulfil the burden and standard of proof?
Useable evidence
- Support/Defend allegations
- Oral/Written/Real
- Proportionate to case (value/complexity/allocation)
NOT useable evidence
- Irrelevant evidence
- Lay opinion evidence
- Privileged evidence
- Comms w/o prejudice
- Comms protected by public interest immunity
What is required in a witness statement under PD32?
Prescribed form
Top right of statement
- Party on whose behalf statement made
- W’s initial + surname
- No. statement
- Initial W
- No. exhibits
- Date
Numbered paras
Written in first person
Standard introduction paragraph
Statement of truth (signed + dated)
References > Exhibits
Facts in issue
- NOT hearsay evidence
=> Court may limit length/format + no. Ws
What is required for exhibits to witness statements to be used at trial?
Cover sheet
Identifier > Each doc
When may witness statements not be used?
Affidavit is specifically required
What is required for witness statements for interim applications?
Same as WS
Made by legal rep
- NOT applicant
Additional WS needed
- Evidence within party’s first-hand knowledge directly
Legal reps’ capacity
In support of what
CPR sections > Submissions
Source of info/belief
Statement of truth
- Legal rep’s signature
- Duly authorised by C/D to sign
=> Gives recipient good chance to;
- Consider app + merits
- Prepare response
- Prepare counsel for/negotiate/agree app outcome
- Serve notice to admit facts/produce docs (if challenged)
What is required for witness evidence disclosure?
Disclose to Opponent
- Use at trial
- UNLESS court allows reliance on new evidence
Disclose by simultaneous exchange
- Extension by agreement > UNLESS affects court timetable > Need court consent
Unilaterally serve w/ WS interim app
=> Gives recipient good chance to;
- Case review
- Risk assessment
- Settlement considerations
- Counsel discussions re advice
- Client discussions re how best to proceed
When may witness summaries be required?
Court consent
Serve by date for WS exchange
NO W statement, but W to attend trial
If W evidence NOT known > Risky
What should experts give in their opinion evidence?
Give/Prepare expert evidence for purpose of proceedings
NOT opinion > Disputed issues of fact not requiring expert evidence
Specialist knowledge > Court should give more weight
Relevant matters
- Personally perceived
- Qualified to give expert evidence
What is the expert’s duty to the court?
Help courts re expertise matters
Overrides duty to party giving instructions to expert
Provide unbiased, objective opinions
- Within expertise
- NOT assume advocate’s role
Small claims track > Give evidence at hearing (court consent required from CMC)
- Specify issues which expert evidence should address
- Factors for court consent > Separate experts for each party (proportionate), expert evidence required on liability/quantum/causation, likely within range of opinion, whether party already has expert evidence
