9. Evidence Flashcards
General rule wrt evidence and relevance
Any evidence must be RELEVANT as a precondition to admissibility
General Rule WRT Opinion Evidence
Opinion Evidence is not admissible
Where does the legal burden of proof lie in civil proceedings
The legal burden of proof lies with the claimant and each fact must be proved unless it is admitted by the opponent.
When must a hearsay notice be served on the other side?
If one side intends to rely on hearsay evidence (witness whose statement contains this) and the party is NOT being called to give oral evidence
If a party is calling a witness for oral evidence and this witness’s statement contains hearsay, must the party serve a hearsay notice?
No, not if the witness will be present.
- They just have to serve the witness statement itself
After a hearsay notice is served by the defendant, what options does the claimant have?
- ask court to order that the maker of the statement attends for cross-examination OR
- serve notice of intention to attach credibility of the hearsay evidence
When is hearsay evidence NOT admissible
- Made up of opinion
- irrelevant
Consequences of one party failing to comply with the notice requirements
If a party does not comply with notice requirements, hearsay is still admissible but the failure will be taken into account when deciding how much weight to give to it / deciding costs order at the end of the trial
Definition of hearsay
Hearsay evidence is a statement made outside the court, which is repeated in court, to prove the truth of the matter stated
- Statement must be a relevant fact or admissible opinion, something other than what the witness ‘personally knows’
- can be oral or written
Exception to standard legal burden in civil proceedings
If a defendant in civil proceedings has been convicted of a RELEVANT criminal offence - the burden of proof is reversed.
- Defendant who wants to argue they should not have been convicted has to PROVE this (on balance of probabilities)
When will legal burden of proof fall on the defendant?
- Contributory negligence
Standard of Proof: Civil Proceedings
In civil cases, the claimant is required to prove a fact on the balance of probabilities. This requires the judge to be persuaded that the claimant’s version of events is more likely to be true than the defendant’s. In simple terms, there must be a certainty of greater than 50 per cent.
When is a witness statement required
If a party wishes to call a witness, they have to serve a witness statement on the other party setting out the facts the witness would be allowed to give orally at trial
What happens if one party wishes to call on a witness but has not served a witness statement on the other party?
The witness will only be allowed to speak with the permission of the courts
Permitted length of witness statements on Intermediate Track
total permitted length of witness statement / summaries must not exceed 30 pages
If a party wants to call on a witness in trial but cannot get a witness statement - what options do they have?
They can apply to the court without notice for an order to serve a written witness SUMMARY
What does a written witness summary contain?
- Witness’s name and address
- evidence they can provide (if known) or if not the matters on which witness would be questioned as trial
How are the statements of the witness statement ensured to be true?
The witness statement must be verified by a statement of truth:
‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes
to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’.
Who can sign a witness statement?
ONLY the witness (not like statements of case)
Numbers included in the witness statement
Numbers must be expressed as figures NOT WORDS
Headings of the witness statement
The statement should be headed with the title of the proceedings and details such as the name of the witness, the number of the statement and the date in the top right hand corner.
What should a solicitor do if a witness’s statement cannot be given in english?
Statement should be drafted in the witness’s own language with the date and details of the translation included in the statement
Who decides when witness statements are exchanged and when?
- After case has been allocated to a track, court gives directions as to exchange (usually simultaneously to prevent one party seeing another’s first)
- Generally exchange occurs a few weeks after disclosure and inspection of documents
Does the judge see witness statements before the trial?
Yes, they are included in the pre-trial bundle
Once witness is in the stand, can they ‘add’ details to their witness statement?
Only if the court gives permission - must be a good reason as to why it was not in the initial statement
Is the actual witness statement used at trial?
Yes, the witness is shown a copy of their statement at trial after they go into the witness box to affirm it is true
‘evidence-in-chief’ meaning
Witness Statement relied on by the testifying witness
When would an affidavit (instead of a witness statement) be used
If one party is making an application for an order without notice (ie. freezing injunction or search order)
Requirements for a valid affidavit
- Sworn statements from evidence
- Sworn to or affirmed before a solicitor not their own, or other authorised person to confirm truth of the statements
When is evidence relevant?
When it addresses relevant facts in dispute, which have to be proved by the party calling a witness
When might opinion evidence be used?
- If the opinion is portraying the facts personally perceived by them
- If it is expert evidence
When a witness (non-expert) can make a statement of opinion
If they are doing so as a way of conveying relevant facts personally perceived by them - it will be admissible
- witness should list facts which led them to reach their conclusion
- cannot draw any conclusion from their evidence that would be the role of the court
what will the judge consider when determining the weight to award hearsay evidence?
- what issue the evidence addresses
- how important the issue is to the case
- other evidence which addresses this same issue
- whether the hearsay evidence is more probative than other evidence which could be obtained through reasonable efforts
Is expert evidence unlimited / can it be restricted by the court?
the court can restrict such evidence to that which is reasonably required to resolve issues, including:
- refusing to allow any at all
- limiting number of experts generally or in relation to specific issues
- directing that parties must agree experts; or
- limiting expert evidence to written reports
Necessary pre-requisites for calling an expert witness
- obtaining court’s permission
- court must be satisfied that Expert is necessary to decide issue, taking into account value of claim and costs
- Must provide info to court about:
- name of expert (if possible)
- field person is an expert in
- knowledge and experience of expert
- issues they’ll address
When would the court’s permission for using an expert witness be obtained?
- At directions stage: either
i. when case is allocated to fast track or
ii. soon after for intermediate and multi-track cases (ie. at CMC)
Expert’s Duty to the court
the expert’s duty is to assist the court by providing objective, unbiased opinions on matters within their own expertise.
Which is stronger: the expert’s duty to the court or the one who instructed them?
The duty to the court (but there still exists a duty to the party that instructs them under the SGSA 1982)
When might a single joint expert be recommended by the courts
Where both parties wish to submit expert evidence on a particular issue, the court may direct that the evidence is given by one expert only.
i. if it is proportionate
Are the expert’s instructions (when separate experts are used) privileged from inspection from the defendant
No, the expert’s report will contain these facts and instructions and therefore can be scrutinised by the defendant
If the expert has relied on any external aids in formulating their opinion - do they write this in the expert report?
The expert report should give details of any external aids (like literature) relief on
For an expert writing their report: how do they deal with differing opinion in their field? Should it be acknowledged or ignored
the expert should summarise any range of opinion which exists and then give reasons for their opinion
Essential inclusion in the expert’s reports wrt their duties
Expert’s report should include statement that they understand their duty to the court and have complied with this and are aware of Part 35 and related guidance
Should expert’s report contain a statement of truth?
Yes
Can an expert be an expert if they were or are employed by the claimant?
Yes, so long as they adhere to their duty to the court to be unbiased and accurate etc.
If an expert’s report fails to comply with the requirements set out in Part 35: what are the consequences of this?
If the breach is serious, the party may not be able to rely on this evidence
- but this is a matter of discretion for the judge - and they can decide to lessen the weight attached to the evidence rather than disregarding it in its entirety
Can an expert be cross-examined about the nature of their instructions?
Only if the court gives permission (some reason to believe that there has been a professional conduct issue)
Separate Experts: after reports are exchanged, will the court order that the experts meet?
Potentially (not necessarily) the court will order a joint discussion - need not be face to face
