19. Evidence of Fact Flashcards
What power does the court have re control of evidence?
It may control it by giving directions as to:
1. The issues upon which evidence is required
2. The nature of the evidence required to decide those issues; and
3. The way evidence is to be placed before the court
May the court use its power of control of evidence to exclude admissible evidence?
Yes.
May the court limit XX?
Yes.
Where a fact must be proved by witnesses, what is the general rule of how their evidence is to be given?
It is to be proved:
1. At trial, by their public oral evidence; and
2. At any other hearing, by evidence in writing
Does the general rule on how witness evidence is to be given always apply?
No.
It is subject to:
1. any provision to the contrary in the CPR
- Any order of the court
What directions may the court give re witnesses?
- Identifying or limiting issues to which evidence may be directed
- Identifying witnesses who may be called or whose may be read
- Limit the length or format of witness statements
Can evidence be given live by means other than in person?
Yes, such as video link. Has a wide power in this regard.
In proceedings other than at a trial, what is the general rule on how evidence is to be given?
By witness statement, unless the court, a PD, or any other enactment requires otherwise
At hearings other than at a trial, what can (other than witness statements) be relied upon as evidence?
Statement of case or
Application of notice
If either have a statement of truth.
Is XX permitted at a hearing other than a trial where evidence is to be given in writing?
Yes, if an application for permission is made to the court. A court then may make an order for it.
What are the consequences of, after giving permission for XX at a hearing other than a trial, a witness fails to turn up as required?
His evidence may not be used unless the court gives permission.
What may happen where someone makes a false statement?
Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.
Where the court, CPR, PD, or any other enactment specifies evidence must be given in affidavit form, does a witness statement suffice?
No, it must be given by affidavit instead of or in addition to a witness statement if so required
Where an affidavit is not required, can one nonetheless be used instead of a witness statement?
Yes, but they may not recover the additional cost of making it unless the court orders otherwise
What form does an affidavit take?
The one specified in PD 32.
What can a party apply to do to a person before a hearing takes place?
To examine them.
This is referred to as a deposition
Where a person is being deposed, what are they referred to?
A deponent
What shall an order for a deposition include?
- For a deponent to be examined on oath before:
a. A judge
b. An examiner of the court; or
c. Such other person as the court appoints - It shall also specify the date, time, and place of the examination
- It could also order the party who obtained the order for deposition to serve a witness statement or witness summary in relation to the evidence ot be given by the person to be deposed
For a deposition, what may the court order re documents?
The production of any document the court considers necessary for the deposition
Where a person is served with an order for a deposition, what must they be offered or paid?
- A sum reasonably sufficient to cover his expenses in travelling to and from the deposition; and
- Any sum by way of compensation for loss of time as may be specified
How may evidence be given other than live?
Via video link.
How must a deposition be conducted?
Unless otherwise ordered, the examination must be conducted in the same way as if the witnesses were giving evidence at a trial
What may the examiner do re someone not named in the order for examination?
They may examine them, if all parties and the person consent
Can the examiner conduct the deposition examination in private?
Yes
What must the examiner do re a copy of the deposition?
- Send a copy to:
a. The person who obtained the order; and
b. The court to where the case is proceeding
What must the party who obtained an order for a deposition do re the copy of the deposition?
Send all other parties a copy of the deposition he received from the examiner.
What may the court do with a deposition?
It may be given in evidence at a hearing unless ordered otherwise
What must a party intending to put in evidence a deposition do?
- Serve notice of his intention to do so on every other party
- Serve that notice at least 21 days before the day fixed for the hearing
What may the court do re someone who has been subject to a deposition?
Require that person to attend and give oral evidence
How shall the evidence from a deposition be treated for the purposes of inspection (i.e. disclosure) of witness statements?
As if it was from a witness statement
What is a witness statement?
- A statement signed by a person which contains the evidence which that person would be allowed to give orally
What will the court order re witness statements?
One party to serve on the others any witness statement that they intent to rely on in relation to any issues.
It may also give directions as to:
1. The order in which such statements are to be served; and
2. Whether or not the witness statements are to be filed.
What must a party to where they have served a witness statement and wishes to rely on the evidence of that witness?
He must call the witness to give evidence, unless the court orders otherwise or he puts the statement in as hearsay evidence
Where a witness who has given a witness statement is called to give evidence, what is use of that witness statement?
It serves as his evidence in chief, unless the court orders otherwise.
One reason it may order otherwise is if the statement is devoted to irrelevant matters.
What may a witness giving oral evidence at trial do re his witness statement?
With the permission of the court:
Amplify his witness statement; or
Introduce new matters which have since occurred since the witness statement was served
ONLY IF IT CONSIDERS THAT THERE IS GOOD REASON NOT TO CONFINE THE WITNESS TO HIS WITNESS STATEMENT.
Though witness statements should not be considered overally prescriptive to avoid too much costs being faced pre-trial, any prejudice to the other-side should not just be routinely disregarded by reference to costs
What can the other parties do where a party who has served a witness statement decides not to call that witness or put their statement in as hearsay evidence?
They may instead put the witness statement in as hearsay evidence. They are not entitled to. It is a discretion
Furthermore, they are not entitled to edit parts of it
Additionally, the other party who did not originally call them can request XX. This does not run foul of the rule that this party cannot XX
What are parties required to do re witness statements in advance of the trial?
Serve them on all others
What should a party do where a witness wants to introduce matters not referred to in their witness statement?
They should give a supplemental witness statement
Where one party is absent, is the court obliged to take notice of the witness statements of them?
Absent proper notice, no
In what form should a witness statement be in?
One which complies with PD 32
Where a party is required to serve a witness statement but is unable to obtain one, what may they do?
Apply, without notice, for permission to serve a witness summary instead.
Being ordered to serve witness statements does not mean permission is granted for summaries. Express permission is needed.
What is a witness summary?
It is a summary of:
1. The evidence, if known, which would otherwise be included in a witness statement; or
2. If not known, the matters about which the party serving proposes to question the witness
It also must include their name and address. Unless the court orders otherwise
When should a witness summary be served?
Unless the court orders otherwise, served within the period in which a witness statement would have had had to be served
Do the other rules on a witness statement (requirement to serve, amplifying, form) apply to a witness summary?
Yes, so far as is practicable
The court may order that their name or address is not needed.
A summary is not sworn.
What guidance is there on an application to rely on a witness summary?
- Whether the claimant had been unable to obtain a witness statement
- The extent to which the witness’ evidence was relevant
- Whether permission was compatible with the overriding objective
- The adequacy of the content (i.e. how far it complied with the rules and how fair it was to the defendant)
- One consideration relevant is whether the party is a LIP
- Application has to be rigorously scrutinised.
What is the consequence of a failure to serve a witness statement or summary?
- If not served within the time frame given, the witness may not be called to give oral evidence unless the court gives permission
Can a witness be cross-examined on a witness statement?
Yes, whether or not the statement or any part of it was referred to in their EIC.
To what use can a witness statement/affidavit be made (i.e. in what proceedings)?
In only the proceedings in which it is served, unless:
1. The witness gives written consent
2. The court gives permission; or
3. The witness statement has been put in evidence at a public hearing
What right do other parties have in relation to the other party’s witness statement?
Where it stands as EIC, it is open to inspection unless the court otherwise directs
Can inspection of a witness statement be refused?
Yes, any party may make an application for a direction that such a statement is not open to inspection.
The court will not make a direction unless satisfied that a witness statement should not be open to inspection because of:
1. The interests of justice
2. The public interest
3. The nature of any expert medical evidence in the statement
4. The nature of any confidential information in the statement; or
5. The need to protect the interests of any child or protected party
The court may exclude words or passages in the statement from inspection.
What is a witness summons?
A document issued by the court requiring a witness to:
1. Attend court or give evidence; or
2. Produce documents to the court
In what form should a witness summons be in?
The relevant practice form
Must there be a separate witness summons for each witness?
Yes
What may the witness summons require re document production?
That they are either produced:
1. On the date fixed for a hearing; or
2. On such a date otherwise directed
What documents can be required to be produced via a witness summons?
Only those which could have been required to produce at the hearing
When is a witness summons issued?
On the date entered onto the summons
When must a party obtain permission from the court for a witness summons?
- Where it is less than 7 days before trial
- Have a summons issued for a witness to attend court or produce documents on any date except that fixed for trial
- Have a summons issued to give evidence or produce documents at any hearing other than at the trial
Who must the witness summons be issued by?
- The court where the case is proceeding; or
- The court where the hearing in question will be held
Can a witness summons be set aside/varied?
Yes
Can a court issue a witness summons to help an inferior court or tribunal?
Yes
Where a court issues a witness summons in aid of an inferior court or tribunal, who can set it aside/vary it?
The court which issued it
For the purposes of a court issuing a witness summons to help an inferior court or tribunal, what are such courts/tribunals?
Any such one which does not have power to issue a witness summons in relation to proceedings before it
When should witness summons be served?
- It is generally binding if served at least 7 days before the date they are required to either attend or produce documents
- Equally, a court may direct it will be binding even though it will be served less than 7 days before the date they are required
What type of witness statement is binding by the mere fact of it having been issued?
A witness summons:
1. Served in accordance with the CPR; and
2. Required the witness to attend court to give evidence
Binding until the conclusion of the hearing at which attendance is required.
Who is to serve a witness summons?
- The court unless the party on whose behalf it is issued indicates in writing when requesting issue that he wishes to serve it himself
Where the court is to serve a witness summons, what must a party requesting that witness do?
Deposit, in the court office, the money to be paid or offered to the witness for travel and compensation
At the time of service of a witness statement, what must the witness be offered or given?
- A sum sufficient to cover his expenses for travel; and
- Sum for compensation or loss of time
What is a notice to admit fact?
A notice on served on another party requiring him to admit facts, or the part of the case of the serving party, specified in the notice
When must a notice to admit facts be served by?
No later than 21 days before trial
Where a party make an admission in response to a notice to admit facts, where may that admission be used against him?
Only:
1. In the proceedings to which the notice to admit is served; and
2. By the party who served the notice
May a party amend/withdraw from any admission made under a notice to admit facts?
Yes, on such terms as it thinks just
When will a party be deemed to admit the authenticity of a document disclosed to him?
Where he does not serve notice that he wishes the document to be proved at trial
When must a notice to prove a document be served?
- By the latest date for serving a witness statement, or
- Within 7 days of disclosure
Whichever is later.
Who would an application to vary a witness summons be heard by?
A DJ or Master
