6 Evidence

Question 1

what is the general rule as to admissibility?

Answer 1

all evidence that is relevant to the facts is admissible

Question 2

to what evidence are there special rules?

Answer 2

• opinion
• privileged
• hearsay

Question 3

opinion evidence

Answer 3

inadmissible
EXCEPT:
- perceived facts s.3(2) CEA
- expert opinion s.3(1) CEA

Question 4

hearsay - definition

Answer 4

1. A written or oral statement;
2. Made on a previous occasion (out of court)
3. Which is being adduced in court
4. to show that the statement is true

Question 5

hearsay - general rule

Answer 5

admissible in civil proceedings by 📙s.1 CEA 1995

Question 6

hearsay - what must be done if intending to rely on it?

Answer 6

If party intends to rely on hearsay must give notice to other side 📙s.2 CEA 1995

Question 7

what would be sufficient in terms of hearsay?

Answer 7

even just having the statement in WS is sufficient notice ⇾ no further formal notice requirements

Question 8

how should you approach redrafting a WS?

Answer 8

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

Question 9

top right hand corner layout

Answer 9

Claimant
X Smith
First
XS 1-3
19.2.16

Question 10

how must WS be expressed?

Answer 10

FIRST PERSON

Question 11

what should you check in relation to employment?

Answer 11

clarify employment history ensure companies referred to throughout doc consistently & correctly

Question 12

Information/belief paragraph - wording

Answer 12

‘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.’

Question 13

WS- referring to other people

Answer 13

give full name when mentioning for 1st time & explain who they are
if D/C ⇾ refer to as ‘[First] Defendant/Claimant’ (not by name)!

Question 14

if mentioning correspondence, telephone calls & meetings

Answer 14

PROVIDE DATES

Question 15

what should always be EXCLUDED from WS?

Answer 15

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

Question 16

If proof required in defence, WS should

Answer 16

address this point because it is a Q of fact to be dealt w. by a witness

Question 17

If witness employee of C/D, take care in

Answer 17

1. setting out address PROFESSIONAL adress (not personal address)
2. state occupation & ensure employment history is clear
3. take care in setting out who performed certain acts (e.g. did the witness purchase the property of was it in fact Claimant?)

Question 18

When should the witness be ‘respectfully asking’ the court for something?

Answer 18

ONLY for an interim application

Question 19

Signing of WS - WORDING

Answer 19

‘I believe that the facts stated in this witness statement are true.’
Signed ………..
XS

Question 20

exhibit - WORDING

Answer 20

‘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”.’

Question 21

what should you do if concerned witness may not attend trial

Answer 21

ensure attendance by serving witness summons

Question 22

when should a witness summons be served

Answer 22

> 7 days before date witness required to attend court

Question 23

SJE - what can a party who disagrees do?

Answer 23

1. Q to expert 35.6
2. seek permission to call another expert (although difficult, costly & uncertain)
3. seek advice advisory expert
4. seek direction for SJE to give oral evidence if not yet given

Question 24

SJE - if one party agrees with the report, what can they do in relation to the other party disagreeing?

Answer 24

1. consider serving NOTICE TO ADMIT FACTS 32.18

2. consider settlement offer to other side

Question 25

what should be set out in the letter of instruction?

Answer 25

• 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…)

Question 26

expert discussion - advantages of attending

Answer 26

1. expert evidence may be vital - prevent other expert ‘browbeating’ yours
2. assist on law & facts of underlying case
3. attendance may encourage parties to consider settlement after seeing other side ‘in action’

Question 27

expert discussion - disadvantages of attending

Answer 27

1. increased costs for both parties

2. presence of lawyers could inhibit a full & frank discussion