5): Evidence and Disclosure Steps Required in Commencing, Responding to, Progressing, or Defending a Claim Flashcards
What are the key rules surrounding evidence?
must be relevant to proceedings
does not have to disprove/prove facts in issue but has to assist in doing so
if evidence is relevant, it is admissible
admissible evidence is evidence the court is allowed to consider
opinion evidence not allowed (exceptions apply)
What are the exceptions for allowing opinion evidence?
evidence based on facts if the case that are personally perceived by the witness (not their own personal view of events)
expert opinion evidence in their qualified field
What is hearsay evidence?
statement made outside court
which is repeated in court
to prove the truth of the matter stated
When can hearsay evidence be admissible?
if it:
relates to the relevant fact; or
is an admissible opinion
What must a party wishing to introduce hearsay evidence in civil proceedings do?
- serve a hearsay notice on:
all the parties that they wish to rely on hearsay evidence
- notice must be served no later than last day for serving witness statement
- within 28 days of service of hearsay notice, other parties may request particulars of evidence
- party being served has the right to call the witness for cross-examination within 14 days of being served hearsay notice
- court then considers the context to estimate weight of hearsay evidence
What is the standard of proof in civil cases?
on the balance of probabilities
burden is on claimant
What is expert evidence?
relates to matters of technical/scientific nature
generally includes expert’s opinion unlike witnesses of fact
What are the duties of experts?
help the court with matters within their expertise
duty overrides the duty to the person paying/instructing the expert
should be independent, transparent + objective
evidence can be rejected if duties to court are not complied with
evidence usually in written report unless permission is granted for it to be given orally
What is the role of a single joint expert?
instructed to prepare a report for the court on behalf of 2 or more of the parties
normally in the fast track allocated claims
each party having their own expert is usually on the multi-track
Are discussions between experts allowed?
yes, CPR allows the court to direct discussion to require them to take the following steps:
identify + discuss expert issues in proceedings
where possible, reach agreed opinion on those issues
Note:
not mandatory
What should an instructing solicitor do with regard to expert discussions?
remind them of relevant areas of discussion and the need to confine their the discussion to the relevant are of expertise
solicitors should not influence content of expert discussions
What is a witness statement?
written statement signed by a person which contains evidence that person would be allowed to give orally.
inadmissible/irrelevant material not allowed.
non-compliance with PD may allow court to refuse it as evidence
where witness is called to give evidence, witness statement will stand as evidence in chief
What are the filing requirements for a witness statement?
- heading with name + number of proceedings + court div.
- details stated on 1st page top right-hand corner.
- be written in witnesses’ own words and in 1st person
- state witnesses’ full name, address, occupation, capacity +if they are party to proceedings
- indicate statement is from witnesses’ own knowledge, info +belief
- verified by statement of truth
What happens if a party is unable to obtain a witness statement from a witness a party intends to call?
a party may apply to the court to serve a witness summary instead of a statement
What is an affidavit?
- sworn statement of evidence made before solicitor/authorised person that the contents are true
- affidavits used in some cases such as:
app for search order
freezing order
order requiring an occupier to permit another to enter their land
What is the purpose of disclosure?
to make available evidence which either supports or undermines the respective parties’ cases
is a statement made by a party that a doc exists/has existed
all parties subject to duty to make a reasonable search for docs
What are the limitations on the duty to disclose?
limited to a doc which is/has been in party’s control such as:
physical possession
right to possession
a right to inspect/take copies of it
What is a ‘document’ for the purpose of disclosure?
includes all media on which info is recorded
tapes, computer records, e-mails, paper
includes: electronic info stored on servers + back-up systems
can extend to: deleted data + metadata
What follows completion of the reasonable search and identification of relevant documents in standard disclosure?
complete Form N265 to prep a numbered list of docs
include disclosure statement signed by the party
Serve Form N265 on other party by date set out in Directions Order
opposing party will prep list of docs they wish to inspect from the list
inspection must be allowed within 7 days of receiving notice
What is the procedure for requesting to inspect a document from a list in standard disclosure?
after receiving other party’s list:
party is entitled to request in writing within 7 days to inspect the docs in the list
Unless:
they are covered by legal professional privilege OR
no longer in the party’s control
What is the requirement of standard disclosure?
requires a party to disclose docs:
on which its relies
that adversely affects/ supports its/another party’s case
that it is required to disclose by a relevant PD
Note:
where an order is for standard disclosure, each party must make a reasonable search for docs
What disclosure orders apply for claims on the small claims track?
standard provisions for disclosure + inspection do not apply
each party shall file and serve on every other party, the docs they intend to rely upon at least 14 days before final hearing
What disclosure orders apply to claims on the fast track?
standard disclosure timetable applies
What disclosure orders apply for claims on the multi track (including personal injury claims)?
standard disclosure timetable applies
