6. Evidence needed and disclosure steps required in commencing, responding to, progressing or defending a claim Flashcards
a. Relevance, hearsay and admissibility b. The burden and standard of proof c. Expert evidence (opinion evidence, duties of experts, single joint experts, discussion between experts) d. Witness statements e. Affidavits f. Standard disclosure g. Orders for disclosure h. Specific disclosure i. Pre-action and non-party disclosure j. Electronic disclosure k. Privilege and without prejudice communications l. Waiver of privilege
What is the burden and standard of proof in civil proceedings?
On the party making the allegation (usually C), but can be D if counterclaim or allege CN.
The standard is on the balance of probabilities.
What is the general principle for civil evidence?
That if a piece if relevant to the proceedings, then it is admissible.
Which measn a party is allowed to present it at the court for them to consider.
What are the two exceptions to admissible evidence?
- Hearsay evidence
- Opinion Evidence
What is opinion evidence?
Witnesses can only give evidence based on the facts of the cas enot heir own personal viewpoint.
It will usually be inadmissiable unless it falls into one of the exceptions.
When is opinion evidence be admissible?
- Evidence based on facts that are personally perceived by the witness.
- It was cold - admissible.
- It was too cold to think about driving that date - inadmissible.
If it does not draw of the witnesses values, its more likely to be admissible.
- Expert Opinion Evidence.
On any relevant matter that the expert is QUALIFIED to give their opinion - in must be within their qualified area of expertise.
What is hearsay evidence?
A statement made outside of court that is repeated in court by somebody who did not originally make the statement.
What questions should be asked about whether the hearsay is (in)admissible?
- Does the evidence fall under the defintion of hearsay?
- Is the hearsay evidence admissible according to the test?
- Have the procedural requirements to use hearsay been complied with?
- What weight will the court likely attach to the hearsay evidence?
When does the evidence fall under the defintion of hearsay?
The statement itself (not the person making it) must be related to a relevant fact or be an admissible opinion.
Must be a statement made out of court, repeated by somebody in court, to prove the truth of the matter stated.
When is the hearsay evidence admissible according to the test?
Under s1 Civil Evidence Act - Where it:
- Relates to a relevnt fact;
- Is not repetition of an opinion that is not a perception of the facts.
What are the procedural requirements for hearsay?
Party wishing to rely must give notice to the other parties.
The notice requirements depend on whether the party is intending to call the witness to give oral evidence.
What are the notice requirements if intending to call witness to give oral evidence?
The witness statment containing the hearsay evidence must be served on the other party.
What are the notice requirements if not intending to call witness to give oral evidence?
The whole of that witnesses statment becomes hearsay!
Party wishing to rely must serve a
- separate formal notice withness the witness satment identifying hearsay evidence, confirming that they wish to rely on it at trial and giving reasons why the witness will not be called.
Party served with the notice
- can ask the court to order that the witness be called in order to cross-examine them on their evidence; or
- serve a notice to attack credibility within 14 days of being served the hearsay notice
What happens if there is a failure to serve notice of hearsay?
The evidence will still be admissible, however it may affect the weighting that the court attaches it at the final trial.
What weight is the court likely to attach to the hearsay evidence?
Will take into account:
- The reason that the witness has not been able to attend.
Unless v good reason, court unlikely to give much weight if person does not attend to be questioned on it. - Whether the original statement was made at the same time as the relevnt fact.
- Whether the evidence involves multiple hearsay.
- Whether any person involved had any motive to conceal or misrepresent matters.
- Whether the original statement was an edited account or was made in collaboration with someone else.
- Whether the party seeking to rely has given proper notice.
What is notice to attack credibility?
A document which notifies a party that the opponent wishes to challenge their witness testimony on the basis that the witness it unrealiable, untrustworthy or biased.
What is multiple hearsay?
Where the information has passed through multiple people.
He said that she said that they said etc..
What is the structure of a witness statement?
- Top of the first page.
- Introduction to the main body of the statement.
- Main body of witness statement.
- Final section and statement of truth.
What is included at the top of the first page?
- The party on whose behalf it was made.
- Initials and surname of witness.
- The number of the statement in relation to the witness.
- The identifying intitials and number of each document.
- Date statement was made.
- Date of any translation.
