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FLK 1 - Dispute Resolution > 5. Evidence > Flashcards

5. Evidence Flashcards

1
Q

In a legal proceeding, how may the court control the evidence?

A

The court may control the evidence by giving directions on:

  • The issues requiring evidence (liability, causation, or quantum).
  • The nature of the evidence needed (e.g., expert reports).
  • The allowable number of witnesses of fact.
  • The method of presenting evidence (orally or through written statements).
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2
Q

What principle does the court consider when exercising its powers, as per CPR, r 1.1?

A

The court considers the overriding objective in CPR, r 1.1, which is to decide matters justly and at proportionate expense.

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3
Q

What is the burden of proof?

A

The legal burden on a claimant to provide sufficient evidence to establish the facts and prove their case.

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4
Q

What is the standard of proof required of the claimant in civil cases?

A

on the balance of probabilities

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5
Q

What does ‘on the balance of probabilities’ mean?

A

more likely than not - i.e. the claimant’s version is more likely than the defendant’s version

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6
Q

In civil cases, when does the burden of proof fall on the defendant?

A

contributory negligence - where D must prove that C’s failure to take care contributed to the damage suffered.

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7
Q

What is the general rule for the burden of proof?

A

lies with the claimant and each fact must be proved unless it is admitted by the opponent.

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8
Q

What is the exception to the general rule for the burden of proof? (shift)

A

Where the D in civil proceedings has been convicted of a relevant criminal offence - the burden of proof is reversed.

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9
Q

What must the defendant do if the exception to the general rule for the burden proof applies?

A

If D wishes to argue they should not have been convicted they must prove this - burden of proof shifts to them.

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10
Q

What is the general rule on evidence?

A

Any fact upon which a party intends to rely must be proved at trial by oral evidence.

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11
Q

What is the modification to the general rule in evidence in civil litigation cases?

A

Evidence dealt with is mostly in writing - does not have to be oral

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12
Q

What is the rule under Part 32 with regards to witness statements?

A

If a party wishes to call a witness, they must serve a witness statement on other parties setting out all the facts which that witness would be allowed to give orally at trial.

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13
Q

If it is difficult to obtain a witness statement what can a party do instead to call a witness?

A

Party can apply to court without notice for an order to serve a written witness summary

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14
Q

What does a written witness summary contain?

A
  • witness name and address
  • the evidence the witness can provide (if known); if not
  • the disputed issues on which the witness would be questioned at trial
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15
Q

When should witness summaries be used?

A

When the alternative is no evidence at all

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16
Q

What is the significance of a witness statement when oral evidence is given?

A

When a witness is called to give oral evidence, their witness statement serves as their evidence in chief. Consequently, the statement should only include information that the witness can articulate orally.

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17
Q

What material should not be included in the witness statement?

A

inadmissible or irrelevant material

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18
Q

What are the formalities that must be included in the witness statement?

A

A witness statement must:
* be headed with name, number of the proceedings and the Court Division
* paragraphs must be numbered with all numbers including dates, being expressed as figures and not words.
* be written in the witnesses’ own words and in the first person
* state witnesses’ full name, address, occupation, capacity, and if they are party to the proceedings
* explain the process by which the witness statement was prepared must be included eg. telephone
* indicate the statement is from witnesses’ own knowledge, information and belief
* be verified by a statement of truth

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19
Q

Can a witness statement be signed on behalf of someone?

A

No - it cannot be signed by a legal representative

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20
Q

What sequence should a witness statement follow?

A

chronological sequence of events

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21
Q

What does a witness statement have to indicate in relation to the knowledge provided?

A

which statements are made from their own knowledge and which are based on information and belief.

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22
Q

How are witness statements exchanged and why?

A

Simultaneously - to prevent unfair advantage by one party seeing the statement first.

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23
Q

When are witness statements exchanged?

A

usually a few weeks after disclosure and inspection of documents

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24
Q

How are witness statements used before the hearing?

A

The judge will read all the witness statements that were exchanged

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25
Q

What does a witness who submitted a witness statement do at trial?

A
  • Go into the witness box
  • Take oath or affirm
  • be shown a copy of the statement
  • confirm contents are true
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26
Q

Once a witness has given their evidence-in-chief what happens?

A

Unless the court gives permission for additional examination-in-chief, the witness is subject to questioning by the other side’s advocate - known as cross-examination.

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27
Q

What are affidavits?

A

sworn statements of evidence

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28
Q

Can a witness add to their statement at trial?

A

Not unless the court gives permission - it must be comprehensive as it is final

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29
Q

How do affidavits differ from witness statements?

A

the maker of them has to swear or affirm before a solicitor (not their own) that the contents of thr affidavit are true.

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30
Q

What are cases where using an affidavit is necessary?

A

applications for a freezing injunction or a search order.

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31
Q

What is the rule on relevance with regards to witness evidence?

A

any evidence included must be relevant - irrelevant material is not admissible

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32
Q

How is relevance of witness evidence judged?

A

by reference to the issues the court

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32
Q

What is the general rule on opinion evidence?

A

opinion evidence is not admissible because the function of a witness is to give evidence of relevant facts from which the court can draw its own conclusions

33
Q

When is opinion evidence admissible?

A
  1. Facts personally perceived - witness of fact
  2. Expert evidence
34
Q

How should a witness of fact submit opinion evidence?

A

List the facts that they saw which led them to reach their conclusion.

35
Q

What can a witness of fact giving opinion evidence NOT do?

A

draw conclusions from their evidence as this is the role of the court.

36
Q

What is hearsay evidence?

A
  • a statement made outside court;
  • repeated in court;
  • to prove the truth of the matter stated.
37
Q

What must a statement be as hearsay evidence?

A

a relevant fact or admissible opinion

38
Q

What format must hearsay evidence be in and how is it presented at court?

A
  • oral or written
  • may be repeated in court in a document or by the witness whether in the witness statement or orally.
39
Q

What is the crucial aspect that determines whether statements are hearsay?

A

the purpose - the reason is to prove the truth of the words said.

40
Q

What are the two types of hearsay?

A
  1. First hand - direct
  2. Multiple - through more than two people
41
Q

What is a hearsay notice?

A

When serving a witness statement containing hearsay evidence, the party intending to rely on it must inform other parties that the witness won’t be called to give oral evidence and to provide an explanation for this decision.

42
Q

When is a hearsay notice served?

A

at the same time as the witness statement

43
Q

What is the result of a party not complying with hearsay notice requirements?

A

Hearsay is still admissible but non-compliance is taken into account when assessing the weight to be given to it, or when making a costs order at the end of the trial.

44
Q

What must a party wanting to introduce hearsay evidence in civil proceedings do?

A

must serve a hearsay notice on all parties they wish to rely on hearsay evidence

45
Q

Within how many days after service of the hearsay notice, may the other parties request particulars of evidence?

A

28 days

46
Q

Within how many days of being served with a hearsay notice does the party served have the right to call the witness responsible for the hearsay evidence for cross examination or serve a notice to attack credibility?

A

14 days

47
Q

What are the 4 questions the court will consider in their approach to the issue of hearsay?

A

(a) What issue, if any, does the hearsay evidence address?
(b) How important is that issue in the case?
(c) What other evidence is available on the same issue?
(d) Is the hearsay evidence more probative than any other evidence the party could obtain through reasonable efforts?

48
Q

What is the purpose of the statutory safeguards in s 4 of the CEA 1995?

A

Assist the judge in assessing the weight that should be attached to hearsay evidence and the opponent may attack the weight attached to the evidence using the guidelines.

49
Q

Is expert evidence always allowed?

A

No - parties do not have an unlimited right to use expert evidence

50
Q

How does the court restrict the use of expert evidence?

A

limited to what is reasonably required to resolve issues

51
Q

Can any party call an expert to evidence?

A

No party may call an expert without obtaining permission.

52
Q

When a case is allocated to the fast track, when is expert evidence considered?

A

at the directions stage

53
Q

When a case is allocated to the multi-track, when is expert evidence considered?

A

at a case management conference

54
Q

What factors does the court consider when determining the necessity of expert evidence in a legal dispute?

A

The court evaluates the need for expert evidence based on factors such as the value of the claim, proportionality, and anticipated costs.

55
Q

What information will the judge required on an expert?

A
  • name
  • their field of expertise
  • their knowledge and experience to ensure suitability
  • the issues they will address
56
Q

In civil proceedings, what does Section 3(1) of the Civil Evidence Act 1972 state regarding the admissibility of a person’s opinion on a relevant matter for which they are qualified to give expert evidence?

A

allows the admissibility of a person’s opinion on a relevant matter for which they are qualified to give expert evidence in civil proceedings

in contrast to the admissibility of opinions from witnesses of fact.

57
Q

What is the experts duty as set out in Part 35?

A

Duty to assist the court by providing objective, unbiased opinions on matters within their own expertise.

58
Q

What is NOT the experts duty as set out in Part 35?

A

Duty is not to assume the role of an advocate.

59
Q

What is the overriding objective to an experts duty?

A

when an expert is instructed by one particular party, the duty to the court overrides any obligation to the person who instructed them.

60
Q

What is an experts duty to the party who instructed them subject to when considering and drafting their report?

A

To exercise reasonable care and skill under s 13 Supply of Goods and Services Act 1982

61
Q

What is a single joint expert?

A

an expert instructed to prepare a report on behalf of two or more of the parties (including the claimant)/

62
Q

When is a single joint expert instructed?

A

Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a SJE.

63
Q

On which allocation track is a single joint expert common on?

A

The fast track

64
Q

On which allocation track is each party instructing their own expert common on?

A

the multi-track

65
Q

For a single joint expert, who chooses the expert?

A
  • Parties agree on one
  • If not, the court will decide from a list prepared by the parties
66
Q

In a case allocated to the fast track, how will expert evidence be given?

A

written only - experts are not permitted to give oral evidence at trial.

67
Q

What is the exchange procedure if separate experts are ordered?

A

a deadline will be imposed for exchange of the experts’ reports

68
Q

What is the procedure on questions on the report if separate experts are ordered?

A

Each party may, within 28 days, put written questions to the expert for clarification of their report.

69
Q

How are an experts answers to questions on their reports treated?

A

As per of the report

70
Q

What is the discussion procedure if separate experts are ordered?

A

the court may order a without prejudice discussion between the experts, usually in the absence of the parties or their legal representatives, and the contents will not be referred to at trial unless the parties agree.

71
Q

What is the purpose of the court ordering a without prejudice discussion between separate experts appointed?

A

To narrow down the issues and to identify:
* the extent of any agreement between them;
* the points of and short reasons for any disagreement;
* what action, if any, may be taken to resolve these; and
* any further material issues not yet raised and the extent to which these are agreed.

72
Q

What is the procedure on a written joint statement if separate experts are ordered?

A

a written joint statement must be prepared for the court and signed by the experts following the without prejudice discussion.

73
Q

What does the written joint statement between separate experts entail?

A

States the issues on which they agree and those on which they disagree with a summary of reasons.

74
Q

Who else is provided with the written joint statement other than the court?

A

copies are provided to the parties

75
Q

What is the procedure on oral evidence joint statement if separate experts are ordered?

A

the judge will decide whether the expert may give oral evidence at trial

76
Q

When is it common for experts to be called to give oral evidence?

A

on the multi-track

77
Q

What are the formalities that must be complied with in an expert report?

A
  • Be addressed to the court.
  • Detail the expert’s qualifications.
  • Specify literature or material relied upon.
  • Include a statement of facts and instructions.
  • Identify individuals conducting examinations or tests and their qualifications.
  • Summarize opinions in case of a range, providing reasons.
  • Offer a summary of conclusions.
  • State the expert’s understanding of their duty to the court and compliance with Part 35 and related guidance.
  • Be verified by a statement of truth.
78
Q

What is the effect of an expert failing to comply with Part 35?

A

If the breach is serious the party may not be allowed to rely on the evidence.

In most cases, the judge will simply take account of the breach when deciding what weight should be given to the expert evidence.

79
Q

Are solicitors allowed to imput on experts discussions?

A

No - solicitors should not influence the conent of expert discussions

FLK 1 - Dispute Resolution (7 decks)

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