21. Civil Trial and Evidence Flashcards
How shall a civil trial be conducted where an order has previously made?
Unless the judge directs otherwise, the trial shall be conducted in accordance with any order previously made
Where evidence, such as a plan, photograph, or model, is not included in a witness statement, affidavit, expert report, to be given orally, or is hearsay (except business records), is that evidence receivable?
No, unless notice has been given to other parties.
This notice must not be later than the latest date for serving witness statements
If there are not to be witness statement or he intends to put in the evidence solely to disprove an allegation made in a witness statement, then the notice must be at least 21 days before the hearing at which he proposes to put in the evidence.
If it forms part of expert evidence, he must give notice when the expert’s report is served on the other party
Where it is being produced for any other reason apart from as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.
He must give every other party an opportunity to inspect it and to agree its admission without further proof.
What happens where a party fails to attend trial?
The court may proceed with a trial in the absence but:
1. If no party attends, it may strike out the whole of the proceedings
2. If the claimant does not attend, it may strike out his claim and any defence to a counterclaim; and
3. If a defendant does not attend it may strike out his defence or counterclaim (or both)
Where a party has failed to attend and the court has striken out part of the proceedings, may those proceedings be subsequently be restored?
Yes, whichever part it wishes
The person is to apply. Must be supported by evidence.
Where a party does not attend and the court gives judgment or makes an order against him, may that party apply for that to be set aside?
Yes
The person is to apply. Must be supported by evidence.
Where the court has made an order (such as strike out) or given a judgment against a party when they are absent, where may it grant an application to set aside judgment?
Only if the applicant has:
1. Acted promptly when he found out
2. Had a good reason for not attending; and
3. Has a reasonable prospect of success
Court can only grant it where all three requirements are satisfied.
It will be a rare case that, once the hurdles are crossed, the order is not set aside.
Court should be very vigorous when assessing the conduct in question. Overriding objective should be considered. Court should also not pre-judge the applicant’s case, particularly where there is an issue of fact.
If the judgment is a nullity (i.e. because the claim form has not been served), the defendant is entitled to have any order set aside as of right. This does not extent to a defendant who had notice of the proceedings but not of the trial date.
The procedure should be followed in cases where judgment has been entered against a defendant even where they have been served with the claim form at all.
If the discretion is exercised, it will often be appropriate to do so on the condition that the applicant pay the other’s costs and pay a sum on account of those costs within a short period
Where a claimant does not attend and their claim and defence to counterclaim is striken out, is the defendant’s counterclaim proven?
No they will still have to prove it.
Generally will entail referring to the part 20 claim form with statement of truth, or tendering witness statements
For the purposes of trial, when is a party “present” so as to not potentially have their claim striken out?
At least his or her solicitor attends.
Where, however, their attendance is ordered in person, they will not be present via mere representation. They will also not be present if attending via video link
If the defendant does not attend and their defence is striken out, will a claimant still have to prove their claim?
Yes, although generally will entail referring to the claim form with statement of truth, or tendering witness statements
Where will the trial take place?
The court where the case is being managed, but may take place at another if appropriate having regard to the needs of the parties and the availability of court resource
Is there an opening speech for a civil trial?
They may dispense with it as they will have generally read the papers
Re timings in a civil trial, what may a judge do?
Confirm or vary any timetable previously given, or if none has been given set one
Will the court sit on consecutive court days in the civil court?
Yes, normally, until the action concludes
What does ‘hearsay’ mean?
a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated, to whatever degree.
Is hearsay evidence liable to be excluded on the ground that it is hearsay?
No, not generally.
Where a party intends to rely on hearsay evidence, what must they do?
Give notice to the other party or parties:
1. Such notice of that fact, and
2. On request, such particulars of or relating to the evidence
As is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay
They will comply by serving a witness statement in accordance with the court’s order
What else must the party do where they intend to rely upon hearsay evidence of a witness they are not calling?
When they serve the witness statement, they must:
1. Inform the other parties that the witness is not being called to give oral evidence; and
2. Give the reason why they will not be called
What must a notice, where a party wishes to rely on hearsay evidence, include?
It must:
1. Identify the hearsay evidence
2. State teat they propose to rely on it; and
3. Gives any reason why the witness would not be called (if needed)
When must the party proposing to rely on hearsay evidence serve the notice by?
No later than the latest date for serving a witness statement
Where hearsay evidence is to be in a document, what obligation does a party proposing to rely on that evidence have?
An obligation to supply a copy to any party who requests him to do so.
Can the parties assent to not having any hearsay notice?
Yes
Does a failure to give notice as to hearsay evidence in the proper form/by the proper time render such evidence inadmissible?
No, but it is relevant for:
1. Its powers during the course of the proceedings;
2. Costs; and
3. What weight to give to such evidence
To what type of hearings does the duty to give a hearsay notice not apply to?
- Evidence at hearings other than trials
- To an affidavit or witness statement which is to be used at trial but does not contain hearsay evidence
- A statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceedings; or
- Where the requirement is excluded by a practice direction
What power does the court have re the maker of a hearsay statement?
On application of any other party, permit that party to call the maker to be XX’d.
The hearsay statement would stand as their EIC.
When must an application for permission to XX a maker of a hearsay statement be made?
Not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.
What considerations are there relevant to the weighing of hearsay evidence?
The court will have regard to all the circumstances from which an inference can reasonably be drawn as to the reliability or otherwise of the evidence. In particular:
1. Whether it would have been reasonable or practicable for the maker to have been called
2. Whether the original statement was made contemporaneously with the occurrence or existence of the matters stated
3. Whether there is multiple hearsay
4. Whether any person involved had any motive to conceal or misrepresent matters
5. Whether the original statement was an edited account, or was made in collaboration with another for a particular purpose
6. Whether the circumstances the statement was made are such as to suggest an attempt to prevent proper evaluation of its weight.
Where a party wishes to attack the credibility of a person who has made a hearsay statement but is not being called, what must that party do?
Give notice of his intention to that person who proposes to give the hearsay statement
Where a party wishes to attack the credibility of a person who has made a hearsay statement but is not being called, by when must notice be given of that fact?
Not more than 14 days after the day on which a hearsay notice was served.
When will hearsay not be allowed in civil trials?
Where they were not competent (but children are generally seen as such if they satisfy certain conditions)
Are convictions admissible as evidence in civil proceedings?
Yes
What is the effect of a conviction as evicence in civil proceedings?
He shall be taken to have committed that offence unless the contrary is proven
What evidence is admissible to prove a conviction in civil proceedings?
contents of the:
1. Information
2. Complaint
3. Indictment
4. Charge-sheet
Shall be admissible
A copy of such document purporting to be certified or otherwise authenticated by or on behalf of the court having custody of that document shall be admissible in evidence and shall be taken to be a true copy unless otherwise proven.
