9. Evidence Flashcards
Who bears burden of proof generally?
Claimant on balace of probabilities unless contributory negligence
meaning of balance of probabilities
More likely than not
If you want to call a witness, what do you do?
serve witness statement on all parties setting out what witness will mention at trial
Failure to file witness statement
Can only speak with court permission
witness summary?
Witness cannot attend trial so written statement giveb if court permits
How are witness statements exchanged?
At the same time to prevent unfair advantages
Once witness statement is served, what happens next?
Witness called to give evidence
Go into witness box, take oath + shown copy of statement + confirm its true
Can the witness add to their statement?
Not unless court permission given (rare unless goood reason given)
Affidavits
sworn statements of evidence in front of solicitor
Are opinions admissable generally?
No
Exceptions to opinion evidence?
- Based on facts personally percieved
- expert opinion
What is hearsay?
- out of court statement
- repeated in court
- to prove the truth of the matter
’ to prove the truth of the matter’ hearsay meaning?
Trial judge must rely on this evidence to reach a decision
Is hearsay admissable in court?
Yes
Notice requirement for using hearsay evidence in court?
Serve notice on other party of intention to call witness with hearsay evidence + other party serve notice to cross-examine or discredit its creditbility
What if the witness whose statement contains hearsay cannot attend court?
Whole statement becomes hearsay + serve hearsay notice on other party with witness statement
Part 35 Doc?
expert statement
Before calling expert, what do you need?
Court permission
Expert witness duty?
Owed to the court to give unbiased opinion within their expertise
duty of reasonable skill and care to instructing party when drafting report
Single Joint Expert?
Fast tracl claims unless good reason not to
both parties want expert evidence on a certain issue
When do courts think SJE is appropriate?
- SJE will help resolve issue in more cost effective way
Which track has seperate experts?
Multi and intermediate track (more complex case)
Process after instructing seperate witnesses?
- deadline to exchange each report
- 28 days to ask questions from the report
- experts will narrow down disputed issues, areas agreed and possible ways to resolve
- issue joint statement outlined agreed and disagreed facts
- judge decide whether to call for oral evidence
Content of witness report?
- Address court
- outline expert’s qualifications
- detail any literature relied on
- state facts + instructions
- identify who has done examinations
- if there are different opinions, identify this
- summarise conclusions
- understand my dutyto court + complied with this
- statement of truth
Example of personally percieved facts
Cannot say they were driving ‘too fast’ but can say there were drunk – based on facts personally perceived
