9. Evidence

Question 1

General rule wrt evidence and relevance

Answer 1

Any evidence must be RELEVANT as a precondition to admissibility

Question 2

General Rule WRT Opinion Evidence

Answer 2

Opinion Evidence is not admissible

Question 3

Where does the legal burden of proof lie in civil proceedings

Answer 3

The legal burden of proof lies with the claimant and each fact must be proved unless it is admitted by the opponent.

Question 4

When must a hearsay notice be served on the other side?

Answer 4

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

Question 5

If a party is calling a witness for oral evidence and this witness’s statement contains hearsay, must the party serve a hearsay notice?

Answer 5

No, not if the witness will be present.
- They just have to serve the witness statement itself

Question 6

After a hearsay notice is served by the defendant, what options does the claimant have?

Answer 6

1. ask court to order that the maker of the statement attends for cross-examination OR
2. serve notice of intention to attach credibility of the hearsay evidence

Question 7

When is hearsay evidence NOT admissible

Answer 7

1. Made up of opinion
2. irrelevant

Question 8

Consequences of one party failing to comply with the notice requirements

Answer 8

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

Question 9

Definition of hearsay

Answer 9

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

Question 10

Exception to standard legal burden in civil proceedings

Answer 10

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)

Question 11

When will legal burden of proof fall on the defendant?

Answer 11

1. Contributory negligence

Question 12

Standard of Proof: Civil Proceedings

Answer 12

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.

Question 13

When is a witness statement required

Answer 13

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

Question 14

What happens if one party wishes to call on a witness but has not served a witness statement on the other party?

Answer 14

The witness will only be allowed to speak with the permission of the courts

Question 15

Permitted length of witness statements on Intermediate Track

Answer 15

total permitted length of witness statement / summaries must not exceed 30 pages

Question 16

If a party wants to call on a witness in trial but cannot get a witness statement - what options do they have?

Answer 16

They can apply to the court without notice for an order to serve a written witness SUMMARY

Question 17

What does a written witness summary contain?

Answer 17

1. Witness’s name and address
2. evidence they can provide (if known) or if not the matters on which witness would be questioned as trial

Question 18

How are the statements of the witness statement ensured to be true?

Answer 18

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’.

Question 19

Who can sign a witness statement?

Answer 19

ONLY the witness (not like statements of case)

Question 20

Numbers included in the witness statement

Answer 20

Numbers must be expressed as figures NOT WORDS

Question 21

Headings of the witness statement

Answer 21

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.

Question 22

What should a solicitor do if a witness’s statement cannot be given in english?

Answer 22

Statement should be drafted in the witness’s own language with the date and details of the translation included in the statement

Question 23

Who decides when witness statements are exchanged and when?

Answer 23

1. After case has been allocated to a track, court gives directions as to exchange (usually simultaneously to prevent one party seeing another’s first)
2. Generally exchange occurs a few weeks after disclosure and inspection of documents

Question 24

Does the judge see witness statements before the trial?

Answer 24

Yes, they are included in the pre-trial bundle

Question 25

Once witness is in the stand, can they ‘add’ details to their witness statement?

Answer 25

Only if the court gives permission - must be a good reason as to why it was not in the initial statement

Question 26

Is the actual witness statement used at trial?

Answer 26

Yes, the witness is shown a copy of their statement at trial after they go into the witness box to affirm it is true

Question 27

‘evidence-in-chief’ meaning

Answer 27

Witness Statement relied on by the testifying witness

Question 28

When would an affidavit (instead of a witness statement) be used

Answer 28

If one party is making an application for an order without notice (ie. freezing injunction or search order)

Question 29

Requirements for a valid affidavit

Answer 29

1. Sworn statements from evidence
2. Sworn to or affirmed before a solicitor not their own, or other authorised person to confirm truth of the statements

Question 30

When is evidence relevant?

Answer 30

When it addresses relevant facts in dispute, which have to be proved by the party calling a witness

Question 31

When might opinion evidence be used?

Answer 31

1. If the opinion is portraying the facts personally perceived by them
2. If it is expert evidence

Question 32

When a witness (non-expert) can make a statement of opinion

Answer 32

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

Question 33

what will the judge consider when determining the weight to award hearsay evidence?

Answer 33

1. what issue the evidence addresses
2. how important the issue is to the case
3. other evidence which addresses this same issue
4. whether the hearsay evidence is more probative than other evidence which could be obtained through reasonable efforts

Question 34

Is expert evidence unlimited / can it be restricted by the court?

Answer 34

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

Question 35

Necessary pre-requisites for calling an expert witness

Answer 35

1. obtaining court’s permission
2. court must be satisfied that Expert is necessary to decide issue, taking into account value of claim and costs
3. 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

Question 36

When would the court’s permission for using an expert witness be obtained?

Answer 36

1. 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)

Question 37

Expert’s Duty to the court

Answer 37

the expert’s duty is to assist the court by providing objective, unbiased opinions on matters within their own expertise.

Question 38

Which is stronger: the expert’s duty to the court or the one who instructed them?

Answer 38

The duty to the court (but there still exists a duty to the party that instructs them under the SGSA 1982)

Question 39

When might a single joint expert be recommended by the courts

Answer 39

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

Question 40

Are the expert’s instructions (when separate experts are used) privileged from inspection from the defendant

Answer 40

No, the expert’s report will contain these facts and instructions and therefore can be scrutinised by the defendant

Question 41

If the expert has relied on any external aids in formulating their opinion - do they write this in the expert report?

Answer 41

The expert report should give details of any external aids (like literature) relief on

Question 42

For an expert writing their report: how do they deal with differing opinion in their field? Should it be acknowledged or ignored

Answer 42

the expert should summarise any range of opinion which exists and then give reasons for their opinion

Question 43

Essential inclusion in the expert’s reports wrt their duties

Answer 43

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

Question 44

Should expert’s report contain a statement of truth?

Answer 44

Yes

Question 45

Can an expert be an expert if they were or are employed by the claimant?

Answer 45

Yes, so long as they adhere to their duty to the court to be unbiased and accurate etc.

Question 46

If an expert’s report fails to comply with the requirements set out in Part 35: what are the consequences of this?

Answer 46

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

Question 47

Can an expert be cross-examined about the nature of their instructions?

Answer 47

Only if the court gives permission (some reason to believe that there has been a professional conduct issue)

Question 48

Separate Experts: after reports are exchanged, will the court order that the experts meet?

Answer 48

Potentially (not necessarily) the court will order a joint discussion - need not be face to face