Civil Trial and Evidence

Question 1

under 28.7, what matters to be dealt with by directions under rule 28.2 (1) include?

Answer 1

disclosure of documents
service of witness statements; and
expert evidence

Question 2

true or false:
Unless the trial judge otherwise directs, the trial will be conducted in accordance with any order previously made.

Answer 2

true.

Question 3

when does r33.6 apply to which evidence?

Answer 3

evidence which isn’t contained in a witness statement, affidavit or expert’s report
to be given orally at trial or
evidence of which prior notice must be given under r33.2

Question 4

true or false:
his rule includes documents which may be received in evidence without further proof under section 9 of the Civil Evidence Act 1995.

Answer 4

true

Question 5

true or false:
Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule.

Answer 5

true

Question 6

true or false:
Where the party intends to use the evidence as evidence of any fact then, except where paragraph (6) applies, he must give notice not later than the latest date for serving witness statements.

Answer 6

true

Question 7

when must a party give notice before the hearing at which he proposes to put in evidence if there aren’t to be witness statements or he intends to put in the evidence solely in order to disprove an allegation made in a witness statement

Answer 7

21 days

Question 8

where evidence forms part of expert evidence, when must he give notice

Answer 8

when the expert’s report is served on the other party

Question 9

true or false:
Where the evidence is being produced to the court for any reason other than as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.

Answer 9

true

Question 10

true or false:
Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.

Answer 10

true

Question 11

what are the three exceptions to 39.3(1) regarding the court may proceed with a trial in the absence of a party

Answer 11

if no party attends the trial it may strike out the whole of the proceedings
if C doesn’t attend it may strike out his claim and any defence to counterclaim; and
if D doesn’t attend it may strike out his defence or counterclaim (or both)

Question 12

true or false:
Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

Answer 12

true

Question 13

true or false:
Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

Answer 13

true

Question 14

an application under para 2 or para 3 must be supported by what?

Answer 14

evidence

Question 15

where an application is made under para 2 or 3 by a party who failed to attend the trial, when may the court grant the application?

Answer 15

if the applicant acted promptly when he found out that the court has exercised its power to strike out or to enter judgment or make an order against him
had a good reason for not attending the trial; and
has a reasonable prospect of success at the trial.

Question 16

true or false:
The trial will normally take place at the court where the case is being managed, but it may be at another court if it is appropriate having regard to the needs of the parties and the availability of court resources.

Answer 16

true

Question 17

true or false:
The judge will generally have read the papers in the trial bundle and may dispense with an opening address.

Answer 17

true

Question 18

true or false:
The judge may confirm or vary any timetable given previously, or if none has been given set one.

Answer 18

true

Question 19

Where may the trial normally take place?

Answer 19

at the civil trial centre but it may be at another court if appropriate having regard to the needs of the parties and the availability of court resources.

Question 20

true or false:
The judge will generally have read the papers in the trial bundle and may dispense with an opening address.

Answer 20

true

Question 21

true or false:
The judge may confirm or vary any timetable given previously, or if none has been given set his own.

Answer 21

true

Question 22

once the trial of a multi-track claim has begun, when will the judge normally sit?

Answer 22

he will sit on consecutive court days until it has been concluded.

Question 23

what is hearsay?

Answer 23

a statement made, otherwise than a person while giving oral evidence in proceedings which is tendered as evidence of the matters stated and references to hearsay include hearsay of whatever degree.

Question 24

where a party intends to rely on hearsay evidence at trial, what are the two requirements so that a party must comply with s2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance w/ the court’s order?

Answer 24

the evidence is to be given by a witness giving oral evidence or the evidence is contained in a witness statement of a person not being called to give oral evidence

Question 25

what are the procedural requirements if a party intends to rely on hearsay evidence and the evidence is to be given by a person giving oral evidence?

Answer 25

notice is given simply by serving a copy of the witness’ witness statement in accordance with the court’s order

Question 26

what are the procedural requirements if a party intends to rely on hearsay evidence and the evidence is contained in a witness statement of a person who isn’t being called to give oral evidence?

Answer 26

the party must serve a copy of the witness statement as above but must also:
(a) inform the other parties that the witness is not being called and
(b) give the reason why the witness will not be called

Question 27

what are the procedural requirements if a party intends to rely on hearsay evidence?

Answer 27

must serve a notice on the other parties which:
(a) identifies the hearsay evidence;
(b) states that the party serving the notice proposes to rely on the hearsay evidence and
(c) gives the reason why the witness will not be called

Question 28

true or false?
The notice must be served no later than the latest date for serving witness statements and, where the hearsay evidence is contained in a document, a copy of the document must be supplied if requested: r. 33.2(4)(a) and (b)

Answer 28

true

Question 29

where a party is put on notice that hearsay will be relied upon, what number of options are available?

Answer 29

pursuant to s. 2(1)(b) CEA 1995 the party may request particulars of or relating to the evidence;

(ii) where the party relying on the evidence does not propose to call the party who made the original statement, any other party may apply to cross-examine the maker on the contents of the statement. Any such application must be made not more than 14 days after the day on which notice of intention to rely on the hearsay evidence was served on the applicant: see CPR r. 33.4;

(iii) where the party relying on the evidence does not propose to call the party who made the original statement, any other party may call evidence to attack the maker’s credibility; no application is required, however, notice of intention to attack credibility must be given (again, not more than 14 days after the day on which notice of intention to rely on the hearsay evidence was served): see CPR r. 33.5;
(iv) a party may simply make submissions in respect of the weight to be attached to the evidence: s. 4 CEA 1995 .

Question 30

true or false:
the duty to give notice of intention to rely on hearsay evidence (see further, below) does not apply inter alia
i) to evidence at hearings other than trials
ii) where the requirement is excluded by a practice direction .

Answer 30

true

Question 31

what does s11 of the CEA 1995 state?

Answer 31

civil proceedings “means civil proceedings, before any tribunal, in relation to which the strict rules of evidence apply ..”

Question 32

what does s1(1) of CEA 1995 state?

Answer 32

In civil proceedings evidence shall not be excluded on the ground that it is hearsay.” Hearsay evidence is, therefore, admissible unless it would otherwise be inadmissible

Question 33

When will hearsay be inadmissible?

Answer 33

if it consists of, or is to be proved by, a statement made by a person who, at the time he made the statement, was not competent as a witness

Question 34

does a failure to give notice with s2 CEA 1995 or r33.2 render the evidence inadmissible?

Answer 34

No

Question 35

if there has been a failure to give notice that hearsay evidence will be used, what will happen?

Answer 35

it may be taken into account by the court in considering the exercise of its powers with respect to the course of proceedings and costs and as a matter adversely affecting the weight to be given to the evidence