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Civil Lit > Civil Evidence > Flashcards

Civil Evidence Flashcards

1
Q

Evidence is material if…

A

…it may decide on the probability of some fact asserted before it

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2
Q

Evidence is admissible if…

A

…sufficiently relevant to prove or disprove facts in issue unless one of the exclusionary rules apply

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3
Q

Evidence is relevant where…

A

…logically probative or disprobative of some matter which requires proof

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4
Q

Collateral facts

A

Not relevant to existence of facts in issue, but relevant to witness credibility or competence

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5
Q

Weight

A

Quality, cogency or probative value

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6
Q

Burden of proof is on…

A

…whoever makes the claim (‘he who asserts must prove’)

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7
Q

Standard of proof

A

Balance of probabilities EXCEPT committal proceedings, apps for sex offender orders

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8
Q

Competence and compellability general rule

A
  • All persons are competent

- All competent persons are compellable

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9
Q

Spouses…

A

…are competent and compellable for any party

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10
Q

Children (under 18)…

A

…can give evidence if understand the nature and consequences of an oath (sufficient appreciation of solemnity of the occasion, and added responsibility to tell the truth)

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11
Q

Compellability

A

Contempt to refuse to attend or refuse to answer questions (unless head of state/diplomat)

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12
Q

Hearsay

A

Evidence is never excluded purely on the basis of being hearsay, but notice must be given

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13
Q

Witness statements

A
  • Simultaneous exchange
  • On date specified
  • Should represent XIC (except for amplification/new matters)
  • Formal heading, initials and surname, which WS, date made, W’s description, in W’s own words, statement of truth, documents formally exhibited
  • A4, durable, one sided, etc.
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14
Q

Opinion evidence

A
  • Only where W is an expert

- Or opinion is the only way that a lay person can convey a complex fact

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15
Q

Expert evidence can only be called where…

A
  • Matter is outside the ordinary experience of the tribunal of fact
  • Field is a recognised body of expertise
  • W suitably qualified to give expert testimony
  • Party must obtain a direction granting permission to rely on it
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16
Q

An expert must:

A
  • Not necessarily need formal qualifications
  • Opine on their area of expertise
  • Recognise their primary duty as being to the court
17
Q

Applications for permission to call expert evidence must identify:

A
  • Field in which expert evidence required
  • Issues on which evidence is required
  • Name (where possible)
  • Costs estimate
  • Complies w/ OO
  • Should be dealt with, where possible, by one expert
18
Q

Joint selection of experts

A
  • C gives D a list
  • D has 14 days to notify of objections to any
  • If D objects to all then may appoint their own
  • Court will decide if anybody acted unreasonably
19
Q

Expert reports

A
  • Addressed to the court
  • Details of qualifications or experience
  • Details of literature
  • Confirming understands duty to court and compliance
  • Statement of truth
  • Substance of facts and instructions
  • Details of any tests
  • Range of expert’s opinion
  • Summarising conclusions
20
Q

Questions to expert to clarify

A
  • Within 28 days
  • In writing
  • Only for clarification
  • Only once unless court/other party agrees
  • Answers become part of the expert’s report
21
Q

Legal Professional Privilege

A
  • Any legal advice between lawyer and client
22
Q

Litigation Privilege

A
  • Documents between lawyer/client/3rd party
  • Where the document was for use in litigation AND
  • The dominant purpose of the document was for use in those proceedings
23
Q

Without Prejudice communications

A
  • Genuine attempt at settlement
  • Does not need to say it is WP
  • Saying it is WP does not make it so
24
Q

Public interest immunity

A
  • Public interest is best furthered by non-disclosure of documents
  • May make a closed material application to disclose only to the court, special advocates, Sec of State
25
Q

Waiver of privilege

A
  • Legal professional privilege
  • Self-incrimination
  • Without prejudice
  • PII
26
Q

Character evidence

A
  • All inadmissible

- Unless a fact in issue/of direct relevance/relevant to credibility

Civil Lit (25 decks)

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