Civil Evidence Flashcards
Evidence is material if…
…it may decide on the probability of some fact asserted before it
Evidence is admissible if…
…sufficiently relevant to prove or disprove facts in issue unless one of the exclusionary rules apply
Evidence is relevant where…
…logically probative or disprobative of some matter which requires proof
Collateral facts
Not relevant to existence of facts in issue, but relevant to witness credibility or competence
Weight
Quality, cogency or probative value
Burden of proof is on…
…whoever makes the claim (‘he who asserts must prove’)
Standard of proof
Balance of probabilities EXCEPT committal proceedings, apps for sex offender orders
Competence and compellability general rule
- All persons are competent
- All competent persons are compellable
Spouses…
…are competent and compellable for any party
Children (under 18)…
…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)
Compellability
Contempt to refuse to attend or refuse to answer questions (unless head of state/diplomat)
Hearsay
Evidence is never excluded purely on the basis of being hearsay, but notice must be given
Witness statements
- 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.
Opinion evidence
- Only where W is an expert
- Or opinion is the only way that a lay person can convey a complex fact
Expert evidence can only be called where…
- 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
An expert must:
- Not necessarily need formal qualifications
- Opine on their area of expertise
- Recognise their primary duty as being to the court
Applications for permission to call expert evidence must identify:
- 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
Joint selection of experts
- 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
Expert reports
- 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
Questions to expert to clarify
- Within 28 days
- In writing
- Only for clarification
- Only once unless court/other party agrees
- Answers become part of the expert’s report
Legal Professional Privilege
- Any legal advice between lawyer and client
Litigation Privilege
- 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
Without Prejudice communications
- Genuine attempt at settlement
- Does not need to say it is WP
- Saying it is WP does not make it so
Public interest immunity
- 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
Waiver of privilege
- Legal professional privilege
- Self-incrimination
- Without prejudice
- PII
Character evidence
- All inadmissible
- Unless a fact in issue/of direct relevance/relevant to credibility
