6 Evidence Flashcards
what is the general rule as to admissibility?
all evidence that is relevant to the facts is admissible
to what evidence are there special rules?
- opinion
- privileged
- hearsay
opinion evidence
inadmissible
EXCEPT:
- perceived facts s.3(2) CEA
- expert opinion s.3(1) CEA
hearsay - definition
- A written or oral statement;
- Made on a previous occasion (out of court)
- Which is being adduced in court
- to show that the statement is true
hearsay - general rule
admissible in civil proceedings by 📙s.1 CEA 1995
hearsay - what must be done if intending to rely on it?
If party intends to rely on hearsay must give notice to other side 📙s.2 CEA 1995
what would be sufficient in terms of hearsay?
even just having the statement in WS is sufficient notice ⇾ no further formal notice requirements
how should you approach redrafting a WS?
format & language ⇾ then look at content ⇾ work backwards (4 ⇾1)
What must W prove?
What is fact?
what are the facts that are going to be in support of legal argument?
What is the legal basis?
What is my argument?
show that you have a real prospect of winning the case
top right hand corner layout
Claimant X Smith First XS 1-3 19.2.16
how must WS be expressed?
FIRST PERSON
what should you check in relation to employment?
clarify employment history ensure companies referred to throughout doc consistently & correctly
Information/belief paragraph - wording
‘I make this witness statement from matters within my own knowledge or belief save where the contrary appears. Where I refer to matters of which I have bene told by others, those matters are true to the best of my knowledge and the source of my information appears.’
WS- referring to other people
give full name when mentioning for 1st time & explain who they are
if D/C ⇾ refer to as ‘[First] Defendant/Claimant’ (not by name)!
if mentioning correspondence, telephone calls & meetings
PROVIDE DATES
what should always be EXCLUDED from WS?
info which is:
1. irrelevant: find balance between material which will explain background of dispute to Judge & info which is irrelevant to issues to be proved at trial
inadmissible (e.g. opinion / privileged) ⇾ a view about the main issue in litigation (e.g. that D was negligent) is opinion & ∴ 2. inadmissible ⇾ watch out for phrasing “I (did not) think…”
3. statutory references (e.g. SGSA) and/or reference to a ‘common law duty’ ⇾ implies a lawyer wrote the draft
If proof required in defence, WS should
address this point because it is a Q of fact to be dealt w. by a witness
If witness employee of C/D, take care in
- setting out address PROFESSIONAL adress (not personal address)
- state occupation & ensure employment history is clear
- take care in setting out who performed certain acts (e.g. did the witness purchase the property of was it in fact Claimant?)
When should the witness be ‘respectfully asking’ the court for something?
ONLY for an interim application
Signing of WS - WORDING
‘I believe that the facts stated in this witness statement are true.’
Signed ………..
XS
exhibit - WORDING
‘I refer to a copy of the relevant extract from [the report by Rite & Coleman/a copy letter from the First Defendant to Claimant dated 1 October 2013] attached and marked “XS1”.’
what should you do if concerned witness may not attend trial
ensure attendance by serving witness summons
when should a witness summons be served
> 7 days before date witness required to attend court
SJE - what can a party who disagrees do?
- Q to expert 35.6
- seek permission to call another expert (although difficult, costly & uncertain)
- seek advice advisory expert
- seek direction for SJE to give oral evidence if not yet given
SJE - if one party agrees with the report, what can they do in relation to the other party disagreeing?
- consider serving NOTICE TO ADMIT FACTS 32.18
2. consider settlement offer to other side
what should be set out in the letter of instruction?
- Qs client would like expert to consider
- fact that the expert owes a duty to the court (not instructing party)
- copy of 📗CPR 35, 📗35 PD & 📘Guidance
- dates by which expert’s report must be completed
- copies of all relevant docs in proceedings (SoC, WSs, disclosure docs…)
expert discussion - advantages of attending
- expert evidence may be vital - prevent other expert ‘browbeating’ yours
- assist on law & facts of underlying case
- attendance may encourage parties to consider settlement after seeing other side ‘in action’
expert discussion - disadvantages of attending
- increased costs for both parties
2. presence of lawyers could inhibit a full & frank discussion
