7. Evidence Flashcards
3 types of admissible evidence
- Documents - Disclosure is the process by which each party tells the other what documents they have that are relevant to the case. After disclosure, certain documents are available for inspection allowing the other party to physically see the original or a copy.
- Witness evidence - (testimony). There are two types of witnesses:
- Witnesses of fact: direct evidence by a witness of what they have perceived with their own senses. This element focuses on witnesses of fact.
- Expert witnesses: evidence of matters of opinion within their expertise.
- Real evidence - ‘Real’ items that are adduced as evidence.
the power of the court to control evidence
Secondly, the court’s broad power to control evidence. The court has the power to control the evidence by giving directions as to:
- The issues on which it requires evidence
- The nature of the evidence it wants
- The way the evidence is to be placed before the court
This broad power relates to all evidence, not just witness evidence.
The court can also:
- Exclude evidence that would otherwise be admissible
- Limit cross-examination
(CPR 32.1)
What is a witness statement?
Turning to witnesses and witness statements, the general rule (CPR 32.2(1)(a)) is that any fact which needs to be proved by the evidence of witnesses at trial will be by oral evidence (although the evidence can be given by video link (CPR 32.3)).
A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally (CPR 32.4(1)).
A witness statement is therefore exchanged with the other parties: this saves time and costs at trial and helps to facilitate settlement because the parties are able to evaluate the merits of their respective cases.
A witness statement usually stands as the witness’s evidence in chief at the trial (CPR 32.5(2)). This effectively means that the witness will be asked to confirm the truth of the contents of the statement in the witness box. The principal purpose of the witness’ attendance at trial is to afford the other party’s counsel an opportunity to cross-examine the witness. The witness will then be re-examined by their own party.
Evidence in chief-witness statement>Cross-examination>Re-examination
Exchange of witness statements
The court will usually give directions as to the exchange of witness statements at the allocation and case management stage.
The parties must comply with any direction given for exchange of witness statements. The direction will usually include a date for exchange with the other party (it is not normal to file trial witness statements at court, although this can be ordered, and they will certainly be included in the trial bundles in due course). The direction can also relate to:
- Limiting the issues
- Identifying the witnesses whose evidence may be used
- Limiting the number, length or format of witness statements
- Specifying the order in which witness statements are to be served
If a party has served a witness statement of a witness and wishes to rely on it, the party must call the witness to give oral evidence at trial or put in the statement as hearsay evidence in accordance with the procedure required by the rules (CPR 33).
If a witness statement (or witness summary) for trial is not served within the time specified by the court, the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10).
Exchange of witness statements is generally the step in the action that follows disclosure and inspection (and comes before expert evidence). All the disclosure documents must be reviewed prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.
Extending the time for serving witness statements
The parties can agree in writing extensions of up to 28 days for serving (and filing, if that has been ordered) of witness statements without the need for court approval provided any such extension does not put a hearing at risk (CPR 28.4 and 29.5).
In the event that an extension of time is agreed before witness statements are due to be served which does have an effect on a subsequent key date, an application should be made to the court for the extension under CPR 3 to avoid the risk of the court not approving the agreement at trial. Similarly, if an extension of time cannot be agreed before witness statements are due to be served, an application should be made.
If no extension is agreed and witness statements are served late, an application would need to be made for relief from sanctions (CPR 3.9). In other words, an application for relief from the sanction that the witness may not be called to give evidence (CPR 32.10). The rules contain circumstances the court is required to take into account when deciding whether to include the witness evidence.
Powers in relation to presentation of evidence
The court retains discretion on the presentation of evidence at trial:
- Rather than the witness statement standing as the only evidence in chief, a witness giving oral evidence at trial may, with the permission of the court, amplify the witness statement or give evidence in relation to new matters which have arisen since the witness statement was served (CPR 32.5(3)). However, the court is unlikely to permit the amplification of evidence that is essentially a late, unjustified change of tack or, for example, to remedy deficiencies as this would create injustice to the other party contrary to the overriding objective (CPR 1.1).
- The court may limit cross-examination (CPR 32.1(3)).
Witness statements for interim applications
In practice, the vast majority of interim applications (for example, requesting an extension of time for filing a defence) must be supported by written evidence setting out the facts that justify the application (for example, that further time is needed to gather important information to draft the defence). In many cases, a respondent will wish to rely on written evidence to oppose the application. Unless the written evidence is contained within a statement of case or an application notice verified by a statement of truth, it will often be in a witness statement and address the issues in the interim application only.
The general rule is that any fact which needs to be proved by the evidence of witnesses other than for trial is to be proved by their evidence in writing (CPR 32.2(1)(b)) – so the witness does not generally ‘give evidence’ in person at the interim hearing and is not cross-examined, the court relies solely on the witness statement. This is fundamentally different to the general rule that applies to trial. However, any party may apply for permission to cross-examine the person giving the evidence (CPR 32.7), although this is very unusual.
Content of witness statements
A witness statement should cover every fact that needs to be proved by the witness’ evidence. A witness statement must be in the witness’ own words although it will usually be drafted by a lawyer. The lawyer ‘proofs’ the witness by interview, produces a draft statement and then allows the witness to amend it as appropriate.
One way of deciding on relevant content is to ask:
- What is the argument?
- What is the legal basis for the argument?
- What are the facts that this witness can speak about that support the legal argument? These are what should be set out in the witness evidence
Inadmissibility of opinion evidence
The general rule is that the opinions of witnesses are not admissible. Witnesses are normally confined to stating the facts. The reasoning behind this rule is that it is the role of the court to form any opinions which need to be formed, and there is a risk that the court may be unduly influenced by the opinion of a witness who may not be as impartial as the court. The court must draw its own inferences from the facts stated.
There are, however, two situations when opinion evidence is admissible:
- Perceived facts; and
- Expert opinion
False statements in a witness statement.
A witness statement must be verified by a statement of truth. A witness who makes a false statement in the witness statement without an honest belief in the truth of that statement, may face proceedings for contempt of court, (CPR 32.14(1)). It is prudent to warn the witness before taking their statement of the implications of signing a false statement of truth.
Prohibition on using a statement in other proceedings
A witness statement may only be used for the proceedings in which it is served unless the witness or the court has given permission for some other use or it has been put in evidence at a hearing held in public (CPR 32.12).
Form of witness statements
- A witness statement must take the form set out in the rules.
- It must be in the witness’s own words and language.
- It must be headed with the court, claim number and parties, in a similar way to most statements of case.
- In addition, it contains an ‘endorsement’ in the top right-hand corner with key information.
- The opening paragraphs give important information about the witness and is followed by ‘information and belief’ wording.
- A statement of truth in a given form must be included.
- A witness statement is always given by a specific individual (not a company or a partnership) and must be signed by that person.
- Witness statements for use at interim hearings contain two brief additional paragraphs.
Affidavits
Affidavits serve the same purpose as witness statements, but they take a different form and must be sworn before a person authorised to administer affidavits.
- Affidavits must be used in an application for a search order or a freezing injunction, and in any other situation where a rule, order or practice direction requires it.
- Reference to ‘affidavit’ instead of ‘witness statement’ in the heading, so it reads “ AFFIDAVIT OF CYNTHIA HARBIN”
- Introduction, with ‘state on oath’ being specific to affidavits, so it reads “ I, Cynthia Harbin, of Tregorran House, 12-16 Deal Plaza, Bournemouth, BH2 5MQ, Managing Director of the Defendant, state on oath:”
- Exhibit wording which is specific to affidavits, so it reads “There is now shown to me marked “CH2” the detailed schedule of these faults”
- Ends with something called a jurat. It is a statement at the end of the document which authenticates the affidavit. (Witness statements end with a statement of truth rather than a jurat). It must:
a. be signed by all deponents
b. be completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath)
c. contain the full address of the person before whom the affidavit was sworn
d. follow immediately on from the text and not be put on a separate page
Hearsay
Hearsay is indirect evidence, whether written or oral. Hearsay evidence is admissible (meaning it can be used) in civil proceedings by virtue of s.1 of the Civil Evidence Act 1995 (‘CEA 1995’).
Hearsay evidence is, however, treated carefully by the court; it is indirect evidence and therefore inherently less reliable than direct oral, documentary or real evidence. Direct oral, documentary or real evidence is the best evidence and should always be relied on where possible.
Definition: Hearsay is:
- An oral or written statement
- Made out of court
- Which is being adduced in court to prove the truth of the matter stated
Special rules on hearsay
As hearsay evidence is considered less reliable there are a number of procedural safeguards in the CEA 1995 to ensure that hearsay evidence is carefully scrutinised. These only apply to hearsay evidence that is to be given at trial. The rules are more relaxed at other stages of proceedings. The CPR also provides further guidance about the application of the CEA 1995 (CPR 33).
If a party intends to use hearsay, it must consider whether or not it is necessary to give notice of its intention to rely on hearsay.
Notice of intention to rely on hearsay evidence
If a party intends to rely on hearsay evidence at trial, it must give notice to the other party that it intends to do so. The rules specify how the notice should be given (CPR 33.2):
- If the evidence is in a witness statement of a person who is to give oral evidence at trial, no formal notice is required. Notice of the hearsay is deemed served when witness statements are served on the other party; no separate communication is required.
- If the evidence is in a witness statement of a person who is not giving oral evidence at trial, no formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons.
- In all other cases, formal notice must be given to the other party identifying the hearsay, stating that the party wishes to rely on it and the reason why the witness will not be called.
If notice is not given when it should have been (usually no later than the latest date for serving witness statements) , the evidence will still be admissible, but the weight the court attaches to it is likely to be less and the offending party may be penalised in costs.
A party has 4 possible options on receipt of a notice of intention to rely on hearsay (which includes notice given by serving witness statement as well as by serving hearsay notice):
Notice of intention to rely on hearsay evidence (s.2 CEA 1995)
- Request particulars of hearsay (s.2 CEA 1995)
- Call for cross-examination (s.3 CEA 1995)
- Challenge the weight of hearsay evidence (s.4 CEA 1995)
- Attack credibility of an absent witness (s.5 CEA 1995)
4 possible options on receipt of a notice of intention to rely on hearsay
Request particulars of hearsay (s.2 CEA 1995)
A party who has received the notice can ‘request particulars’ of the hearsay that are reasonable and practicable for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.
Call for cross-examination (s.3 CEA 1995)
Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them on the statement as if they had been called by the first-mentioned party and as if the hearsay statement was the evidence in chief (CPR 33.4). This could have devasting tactical effects for the adducing party, for example, if the witness is weak. The application must be made no later than 14 days after the hearsay notice was served on the applicant (CPR 33.4)
Challenge the weight of hearsay evidence (s.4 CEA 1995)
It is possible to challenge the weight the court will attach to the hearsay evidence at trial. The factors the court will consider when assessing the weight to attach to hearsay evidence include, for example: (a) whether it would have been reasonable and practicable for the party who adduced the evidence to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously to the matters stated; (c) whether the evidence involves multiple hearsay, etc.
Attack credibility of an absent witness (s.5 CEA 1995)
Where a person wishes to rely on hearsay evidence but does not propose to call the person who made the original statement to give evidence, the party who has received notice can attack the credibility of the absent witness at trial (even though they are not present). The attack should show that the absent witness made previous inconsistent or contradictory statements. The receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served (CPR 33.5).
Use of plans, photographs and models as evidence
Hearsay evidence may arise in different forms of evidence. The definition of hearsay evidence includes oral statements and statements made in documents or any other medium in which information of any description is recorded and therefore includes pictorial representations such as plans, photographs and models.
There are notice rules which must be followed for any evidence that is:
- Not contained in a witness statement or expert’s report;
- Not to be given orally at trial; or
- Not subject to the notice of intention to rely on hearsay provisions discussed earlier in the element.
(CPR 33.6)
This includes plans, photographs and models. Unless notice is given, the evidence will not be receivable at trial.
Convictions as evidence in civil proceedings
In civil proceedings, the fact that a person has been convicted of an offence in a UK court is admissible in evidence to prove that he committed the offence. Proving the offence must be relevant to an issue in the proceedings. This is set out in s.11 Civil Evidence Act 1968.
In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence—
(a) he shall be taken to have committed that offence unless the contrary is proved; and
(b) the contents of any document which is admissible as evidence of the conviction (and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted), shall be admissible in evidence for the purpose of identifying the facts on which the conviction was based.
This does not mean that a conviction ends the issue within the civil proceedings. Instead, a person wanting to prove the contrary will have the burden of proving that the person convicted did not commit the offence on a balance of probabilities.
No conviction other than a subsisting one is admissible in evidence.
Expert Evidence
Evidence used to prove facts
Facts in issue must be proved by admissible evidence. There are three types:
- Documents. Disclosure is the process by which each party tells the other what documents they have that are relevant to the case. After disclosure, certain documents are available for inspection allowing the other party to physically see the original or a copy
- Witness evidence (testimony)
- Real evidence. ‘Real’ items that are adduced as evidence
Exchange of expert evidence is generally the step in the action that follows exchange of witness evidence. It will usually be necessary for experts to consider both disclosure and witness statements before finalising their reports.
There are two types of witnesses:
Witnesses of fact: direct evidence by a witness of what they have perceived with their own senses.
Expert witnesses: evidence of matters of opinion within their expertise. This element focuses on expert evidence.
What is expert evidence?
An expert is generally a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.
Not all cases require expert evidence. However, the judge often has to consider not just legal issues (their expertise) but also scientific, technical, medical or other issues of which the judge may have no direct experience or knowledge. In such cases the judge can be assisted by expert opinion from practitioners or academics with expertise in the relevant area.
A court order is required if a party wishes to adduce expert evidence at trial.
There are particular rules for submitting expert evidence (CPR 35 and 35 PD). Experts and those instructing experts should also refer to the Guidance for the Instruction of Experts in Civil Claims to understand best practice in complying with the rules.
Opinion evidence
The general rule is that the opinions of witnesses are not admissible. Witnesses are normally confined to stating the facts. The reasoning behind this rule is that it is the role of the court to form any opinions which need to be formed, and there is a risk that the court may be unduly influenced by the opinion of a witness who may not be as impartial as the court. The court must draw its own inferences from the facts stated.
There are, however, two situations when opinion evidence is admissible:
- Perceived facts
- Expert opinion
Duty of the court to restrict evidence
The court has a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings (CPR 35.1). If the issues are factual and do not require expert evidence, the court should refuse permission for it to be used at trial. The general rule to restrict evidence can be exercised to exclude evidence that would otherwise be admissible to further the overriding objective.
The court controls evidence by directing the issues on which it requires evidence, the nature of the evidence it requires to decide the issues and the way in which evidence is to be placed before the court.
Power of the court to restrict evidence
Although the parties may wish to adduce expert evidence at trial, they can only do so with the court’s permission (CPR 35.4).
A common misconception is that the court’s permission is required to instruct an expert whereas a party may instruct as many experts as it likes, but it needs the court’s permission to rely on expert evidence in the proceedings. The parties usually obtain that permission by seeking a direction from the court at the case management stage.
