Civil Evidence Flashcards
Court may control the evidence by giving directions as to—
(A) the ___ on which it requires evidence
(B) the ____ of the evidence which it requires to decide the issue
(C) way in which evidence is to be __________ the court
Court may use its power to ____ evidence that would otherwise be admissible
Court may limit ________
(A) issues
(B) nature
(c) placed before
exclude
Cross-examination
General rule as to witnesses if a WS has been served and the party wish to rely on it at trial?
What if witness can’t give oral evidence?
What does a Witness’s WS stand as?
When can a witness give oral evidence that is not included in their WS?
When will could give permission
What can a party do if the other party has served a WS but does not call the witness or put in hearsay evidence?
General rule = then party must call the witness to give oral evidence
Then the party must put the WS in as HEARSAY evidence
Evidence in chief
WITH THE PERMISSION of the COURT, W can AMPLIFY their WS and give evidence in relation to any NEW MATTERS which has ARISEN SICNE WS was served
Permission given if there is good reason not to. Confide evidence to contents of WS
Then the OTHER party CAN PUT the WS in as hearsay evidence
What can a party do if at a hearing, other than a trial, where evidence is given in writing but they want to cross-examine the witness?
When can a witness summary be used?
What is included in a witness summary?
Can apply for permission to cross-examine
If a party needs a WS to use at trial but is unable to get one may apply, without notice for PERMISSION to serve a Witness SUMMARY instead
Sets out evidence that would be included in a WS or if evidence is unknown the matter which eh party serving the witness summary proposed to question the witness on
Needs to include name and address of intended witness and be served in same way WS would be
What is the general rule as to the competence of witnesses in civil proceedings
What are the exceptions to this?
What is the general rule as to compellability of a witness?
What are the exception to this?
All witnesses are competent
Exception:
Mental/physical infirmity
Children:
If understands solemnity of oath = can give sworn evidence, if not unsworn evidence given as long as child understand duty to speak truth and has sufficient understanding
All competent witnesses can be compelled
Exceptions:
Queen/Diplomats/Judges/Bankers/Experts
When can a deposition take place?
How will a deposition be conducted?
Does the court have the power to enforce attendance?
When witness will be unable to attend, or ability to give evidence will deteriate pre-trial, usually due to poor health
Conduct in the same ways as if witness were giving evidence at trial - cross-examination also takes place
If fails to attend or to answer questions deposition examiner will sign certificate of the parties failure or refusal and that will filed with court, on that being filed party can apply for court for an order requiring witness to attend and may also require witness to attend hearing and give oral evidence (even if a deposition is given)
How can a deposition be relied on at trial?
What are the restrictions on the use of a deposition?
May be given in evidence but party needs to serve notice of intention to rely on it on every other party and serve the notice at least 21 days before trial date
Basic rule is can only be used for purpose of the proceedings in which the order was made
Can plans/photos/models/films be relied upon?
How is notice given when this forms part of an expert’s report?
If being used as evidence of fact?
If adduced otherwise than as expert evidence or evidence of fact?
Not unless notice is given
Expert report = notice must be given when the expert reports is served
Evidence of fact = notice must be served no later that latest date for serving WS
Otherwise = notice must be given at least 21 days before hearing
A WS must be verified by ….
A false statement in a WS may …
Ws may only be used for the purpose of ….
Unless …
By a statement of truth
Result in contempt proceedings
The proceedings in which it is served
Unless court/witness five consent or Ws put in as evidence at a hearing held in public
CPR 32.18 allows you to serve a notice on the other side call for them to ____ a particular ____
What if they refuse to do this?
Where a party make an admission in response to the notice the admission may be used against him only— ….
Admit / fact
If a party refused to admit a fact and then evidence is called at trial and the fact is proved then there may be costs consequences - will have to pay costs of pricing the fact - for the party that failed to admit the fact
Only in proceeding in which notice to admit was served and only by the party who served the notice to admit
When an issue arises in relation to getting a witness to court, what is the first question to establish?
What is a witness summons?
Can 1 witness summons cover multiple witnesses?
Is the trial date
7 days + away; or
LESS than 7 days away
Document requiring witness to attend court to give evidence or produce a document
No - needs to be individual summons for each witness
If trial is at least 7 days away ….
- Is permission required?
- If serves at least 7 days before trial date the summons will be …
- Who will serve witness summons?
- NO
- Binding
- Court unless party wishes to do it theirself
If trial is at LESS THAN 7 days away ….
- Is permission required?
- How will the summons be binding?
- Who will serve witness summons?
- PERMISSION REQUIRED for witness summons to be issued
- Will only be binding if court directs so
- Court - unless party want to do it their self
At the time a witness summons I served what must the party be offered?
Must be offered or paid
A reasonable sum to cover expenses in travelling to/from court
Sum by way of compensation for loss of time
If a witness summons was properly issued/served and was binding and offer was made as to expenses,
How can a witness summons be enforced?
Can apply to court for an order requiring witness to attend court
A document is treated as authentic ….
A document’s contents are treated as proved if …
But still need to produce the ….
… unless a party objects and serves notice that they require the document be proved at trial
… if included in agreed trial bundle
… original document: original document should always be available for production to the judge
If you have the original use it, best form of evidence
How do you get a document to court from a non-party?
1 = best option is to ….
What is the other option?
1 = best option = Obtain non-party disclosure under CPR 31.17
2 = Issue witness summons for document to be provide, then rules as to if it is 7 or less days before trial apply.
At least 7 days = No permission required
Less than 7 days = permission required
If a party is seeking to rely on hearsay evidence and that evidence will be given by a witness in oral evidence, who has served a WS, does formal notice need to be given?
What if the evidence is contain in a WS of a person who is not being called to give oral evidence?
how does a party give formal notice?
No formal notice, serving a WS is enough
Then formal notice is required:
When that party serves WS they must inform other parties that witness is not being called to give oral evidence and give the reason why the witness is not being called
If a witness has not given a WS and will not be present at trial, so their evidence will be hearsay, how can this evidence be relied on?
I.e a letter
Need to serve hearsay notice on other parties
Identifying hearsay evidence
Stating why party is rely on it; and
Give reasons witness not being called
NB. No need to give notice in any situation if using evidence at hearings other than a trial
Under CEA 1995, is hearsay evidence admissible?
Definition of hearsay in civil
Yes
Evidence shall not be excluded in civil proceedings on the ground that it is hearsay
But procedure do need to be followed
Definition:
- A statement
- Made by an absent witness
- Being used to prove the truth of what was said
When a party is rely on hearsay evidence and is no calling person who made statement. What can other party do if they wish to cross-examine the witness?
When should notice be served?
Then can apply for the court to permit that party relying on the hearsay to call the maker of the statement to be cross-examined
Application for permission to cross-ex must be made within 14 days of notice of intention to rely on hearsay evidence being served
When estimating the weight to give to any hearsay evidence the judge will have regard to what (6) factors?
- If it would have been reasonable and practicable to produce the witness
- If statements was made contemporaneously to matters
- Where it involves multiple hearsay
- Whether person involved has any motive to conceal of misrepresent matters
- If statement was edited or collaborative account
- Circumstances are such as to suggest an attempt to prove the proper evaluation of the statement’s weight
Under s.11 CEA 1968, are convictions admissible evidence?
Conviction must be ….
Yes
Conviction are admissible and prima facie evidence of the facts underlying them
Must be subsisting NOT spent
Classic application, when driver has been convicted of road traffic offence, which civil claim is also based on
How is a conviction proved?
Proved by producing certificate of conviction
Onus is on convicted person to show that they were not in fact guilty == but near IMPOSSIBLE
Can a ‘stranger’ to an earlier civil judgment use that judgment to prove facts in a later civil case?
What are the exceptions?
NO
Unless a party to the earlier civil judgment
Exceptions: previous civil judgment can be put in …
As evidence of the credit of a witness - as long as not too old or irrelevant
The Claimant’s solicitor serves the hearsay evidence in accordance with the CPR but indicates that he does not intend to call the witness who made the original statement to give oral evidence at the trial.
Defendant wishes to call evidence to attack the credibility of the witness, is there anything he can do?
Defendant would have to give the other party notice of his intention (to attack the credibility of the person who made the statement), no more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.
