5. Evidence

Question 1

What are the three types of evidence?

Answer 1

Documentary

Witness evidence

Expert evidence

Question 2

What is the general rule regarding burden of proof?

Answer 2

The burden lies with the claimant, and each fact must be proved on the balance of probabilities

Question 3

In what exception would the burden of proof be reversed to the defendant?

Answer 3

When the defendant has been convicted of a criminal offence for the same offence - however, still balance of probabilities

Question 4

Under Part 32, what must a party do in order to be able to call a witness?

Answer 4

They must serve a witness statement on the other parties setting out all the facts which that witness would be allowed to give orally at the trial

Question 5

If it would be difficult to obtain a witness statement, what can a party do?

Answer 5

Apply to the court without notice for an order to serve a written witness summary

Question 6

What must a written witness summary contain?

Answer 6

Witness’ name and address
Evidence the witness can provide (if known), or if not then the matters on which the witness would be questioned at trial i.e. relevant disputed issues

Question 7

Can a witness be called if a witness statement or summary for use at trial is not served in respect of them, within the time specified by court?

Answer 7

Only with the court’s permission

Question 8

What are some rules relating to the required form of witness statements?

Answer 8

Numbered, with all numbers expressed as figures

Written in the first person

Indicate which of the statements are made from their own knowledge and which are based on information and belief, naming the source if appropriate

Indicate process by which witness statement was prepared, i.e. on phone, in person

Verified by statement of truth in specific format: ‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’

CANNOT be signed by legal representative

Question 9

What would be the implication of a witness statement failing to comply with the form/ content requirements?

Answer 9

Court will impose discretionary sanction which could prevent witness from giving evidence

Question 10

What is the witness’ examination in chief?

Answer 10

The written statement only

Question 11

When will the court permit either amplification / new evidence being given by the witness

Answer 11

Only if it considers there is good reason not to confine the evidence of the witness to the contents of his witness statement

Question 12

What is the difference between an affidavit versus a written statement?

Answer 12

For an affidavit, the maker has to swear or affirm before a solicitor (not their own) or other authorised person, that the contents are true

Question 13

What is the general rule regarding the inclusion of opinion in witness statements?

Answer 13

Not admissible

Question 14

In what event would opinion be admissible within a witness statement, under s 3(2) Civil Evidence Act 1972?

Answer 14

A witness may give a statement of opinion if made as a way of conveying relevant facts personally perceived by them

E.g. they witnessed defendant driving at about 60m mph which although clearly based on an opinion, would be permitted as it is the only way of expressing what was witnessed

Question 15

Can experts express opinion in court?

Answer 15

Yes

Question 16

What is the definition of hearsay?

Answer 16

A statement made outside court, which is repeated in court, to prove the truth of the matter stated

Question 17

What is the significance of “to prove the truth of the matter stated” within the definition of hearsay?

Answer 17

If something is said as evidence for another point, such as proving claimant was lied to, this would not be hearsay

E.g. repeating false information given, in order to prove it was said and NOT to prove it was true

Question 18

What does a party need to do if they intent to call a witness whose statement contains hearsay?

Answer 18

Serve the other party with the statement

Question 19

If a party is calling a witness whose statement contains hearsay, what can the opposing party do?

Answer 19

Ask the court to order that the maker of the original statement (i.e. not the witness) attends for cross-examination, or serve notice of intention to attack credibility of hearsay (if original maker cannot attend)

Question 20

What happens if a party does not propose to call a witness to give oral evidence but instead intends to rely upon their witness statement itself, which contains hearsay?

Answer 20

The whole statement becomes hearsay - opponent must be served with a hearsay notice

Question 21

What will the judge consider, when considering the weight to be given to hearsay evidence?

Answer 21

Issues (if any) addressed by the evidence

Importance of the issue in question

Evidence available on the same issue

Whether the hearsay evidence is more probative than any other evidence the party could gain through reasonable efforts

Question 22

What does Part 35 govern?

Answer 22

The use of expert evidence

Question 23

What is the expert’s duty in giving expert evidence?

Answer 23

To assist the court by providing objective, unbiased opinions on matters within their own expertise (NOT to assume role of an advocate)

Question 24

What factors will a judge consider when deciding whether to appoint a single joint expert?

Answer 24

If it is proportionate to have separate experts for each party on a particular issue

Whether instruction of a SJE if likely to assist in resolving the issue more speedily and in a more cost-effective war

If there is likely to be a range of expert opinion

Question 25

What is an example of when a judge usually consider it appropriate to appoint an SJE?

Answer 25

Over an issue of quantum (totalling a lower amount)

However, this may not be so if quantum rather than liability is the primary issue in the case

Question 26

If separate experts are ordered, how may the court use written questions to streamline the issues experts need to comment on?

Answer 26

Each party may within 28 days put written questions to the expert for clarification of their report, and expert’s answers are treated as part of the report

Question 27

How may a court streamline witness evidence through ordering a discussion of the expert witnesses?

Answer 27

May order a without prejudice discussion in the absence of parties / legal representatives, with only the contents agreed between the witnesses being referred to at trial

Question 28

Will an expert witness always give oral evidence?

Answer 28

No - must be permitted by the judge

Question 29

What would a written joint statement by the expert witnesses contain?

Answer 29

Prepared following a discussion - stating issues which they agree on and those they disagree on, with a summary of the reasons

Must be signed by both the parties

Question 30

What are some relevant formalities with which an expert’s report must comply?

Answer 30

Be addressed to the court

Give details of expert’s qualifications

Give details of any literature or other materials the expert has relied on

Contain a statement setting out the substance of all facts and instructions

Say who carried out any examinations etc

Summarise where there is a range of opinions

Contain a statement that the expert understands their duty to the court and has complied with this, and is aware of the requirements of Part 35 and related guidance

Verified by a statement of truth in following format: ‘I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer’

Question 31

Who must the expert’s report be addressed to?

Answer 31

The court