8.11: Evidence Flashcards
What is the process for a witness to give evidence.
- examination in chief questions from claimant’s side which uses non-leading questions.
- cross examination, involving leading questions.
- re-examination, further questions from claimant’s / side of the witness which will use non-leading questions.
Do lawyers need to obtain permission to use expert evidence?
Yes - court’s permission is required
When are joint experts required?
When the case in complex, worth over 100k and requires many experts. County Court or multi claims tracks indicates that its a low value case and only one expert will be required.
Are conversations between an expert and lawyer privileged?
No - they can be disclosed to the court when they ask (in practice this usually doesn’t happen).
What is the standard of proof necessary for a claimant to succeed in a summary judgement?
Must show that the D has no real prospect of success
Which party bears the burden of proof concerning the alleged claim?
The claimant. Defendant does not bear the burden of proof but good practice to do so
When there are joint experts, what are the necessary stages?
- finalise their reports
- discussion between the experts
- produce a joint statement
Name the two types of evidence
evidence of fact - witnesses
expert evidence - experts
When would an affidavit be used?
◦ For an application for a search order or freezing injunction
◦ Evidence in support of an application for a freezing order
◦ Generally, affidavits are rarely used in civil proceedings, as they have largely been replaced by witness statements
What are the main types of evidence in civil litigation?
◦ Witnesses of fact
◦ Expert witnesses
◦ Documents
◦ Real evidence (objects)
What determines admissibility of evidence?
◦ Must be relevant to the issues in dispute
◦ Court controls evidence presented - obtain permission
Is hearsay evidence admissible?
◦ Yes, generally
◦ Hearsay notice required
What options does the recipient of a hearsay notice have?
◦ Request particulars
◦ Apply to cross-examine
◦ Challenge credibility
What is the purpose of notices to admit facts?
◦ Prompt the other side to admit a fact
◦ Failure to admit can lead to costs consequences
Who has the burden of proof and what is the standard?
◦ Claimant bears the burden
◦ Standard: balance of probabilities, whereas in criminal it is beyond reasonable doubt
What is the role of witness statements?
◦ Witnesses of fact is usually first provided in the form of a witness statement.
◦ Signed statement containing admissible evidence
◦ Witness must give oral evidence or submit statement as hearsay evidence at trial.
What are the requirements to obtain the court’s permission for expert evidence?
◦ Must be needed to decide the issue
◦ Restricted to what is reasonably required
◦ Must provide estimate of costs for calling the expert, the expert’s field of expertise, and the issues to be addressed when completing the directions questionnaire
What is the role of affidavits?
A sworn statement from a witness
