Civil Trial and Evidence

Question 1

Notice for use of plans, photographs and models and evidence

Answer 1

• This rule applies to plan, photograph of model evidence which is not
  
  • Contained in WS, affidavit or expert report OR
  • To be given orally at trial OR
  • Evidence of which prior notice must be given under rule 33.2
• Unless the court orders otherwise the evidence shall not be receivable at trial unless notice is given no later than the latest date for serving witness statements
• Where the evidence forms part of expert evidence, he must give notice when the expert’s report is served on the other party
• He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if—
  
  • there are not to be witness statements; or
  • he intends to put in the evidence solely in order to disprove an allegation made in a witness statement.
• 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.

Question 2

Court actions if somebody doesn’t turn up for trial

Answer 2

• court may proceed with a trial in the absence of a party but—
  
  • if no party attends the trial, it may strike out the whole of the proceedings;
  • if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and
  • if a defendant does not attend, it may strike out his defence or counterclaim (or both)

Question 3

Actions if court strikes our proceedings (or part) for failure to attend

Answer 3

• Can subsequently restore the proceedings
• Application to do so must be supported by evidence

Question 4

Requirements for court to grant an application to restore proceedings

Answer 4

• As well as application being supported by evidence the applicant must
  
  • Have acted promptly
  • Had a good reason for not attending and
  • Has a reasonable prospect of success at the trial
• The court may only set aside judgement if all three requirements are satisfied

Question 5

Location of trial in the multi track

Answer 5

• The trial will normally take place at a Civil Trial Centre 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

Question 6

What happens if claimant does not attend and there is a counterclaim

Answer 6

• Even though a defence to a counterclaim may be struck out, the defendant will still have to prove their counterclaim
  
  • However, this will normally only entail referring to the Pt 20 claim form (with statement of truth) or tendering witness statements
• A party is present if solicitor attends unless
  
  • Personal attendance has been ordered by the court
• Video link attendance is fine unless
  
  • an order specifies that a party attend court in person

Question 7

What happens if D does not attend

Answer 7

• Even though a defence may be struck out, the claimant will still have to prove their claim
  
  • However this will normally only entail referring to the statement of case (with statement of truth) or tendering witness statements

Question 8

‘Had a good reason for not attending trial’

Answer 8

• The mere assertion that a party was unaware of the hearing date is unlikely to be sufficient to constitute a good reason.
  
  • It is usually relevant to inquire whether the party was aware that proceedings had been issued and served.
• Once a party is aware that proceedings have been served, they have to be taken to expect to receive communications personally from the opposing party and/or the court.
  
  • That includes notifications of hearing dates.
  • If there is no system in place for ensuring that such communications are received, they are unlikely to be able to rely on the absence of such a system to say that there was a good reason for not attending the hearing

Question 9

Good reason for not attending trial - medical reasons

Answer 9

• The court must scrutinise any medical evidence relied on in support of an adjournment and whilst a simple “fit-note” may be insufficient to justify an adjournment or granting of application the court should bear in mind the pressure GPs work under and the difficulties faced by a litigant in person who may find it difficult to obtain a detailed report of their condition
• Relevant factors to take into account in an application under CPR r.39.3 included:
  
  • (a) any history (or absence of it) on the part of the applicant of failure to attend court or apply for adjournments
  • (b) the genuineness of the illness
  • (c) if the applicant’s ability to present his case (in the event that he was capable of being physically present) would be hampered by his illness
  • (d) the absence of any possibility (if the applicant was the claimant) of having the claim determined on its merits.
• It will not suffice for the party seeking an adjournment of a hearing to simply grant the opposing party permission to access and examine their medical records.
  
  • What is required, and should be supplied by the requesting party, is evidence from a medical practitioner explaining the patient’s condition and, crucially, how it will prevent them from attending court or participating in the hearing

Question 10

Application to set aside a judgement or order relationship with denton test

Answer 10

• An application under r.39.3(3) to set aside a judgment or order is an application “for relief from any sanction” within the meaning of r.3.9.
  
  • The denton test is therefore engaged

Question 11

Notice of intention to rely on hearsay evidence

Answer 11

• Where a party intends to rely on hearsay evidence at trial and either
  
  • Evidence is to be given orally or
  • Evidence is contained in a witness statement of person who is not being called to give evidence
    
    • that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court’s order
• Where the hearsay evidence is contained in a witness statement of a person who is not being called to give oral evidence, the party intending to rely on the hearsay evidence must, when he serves the witness statement—
  
  • inform the other parties that the witness is not being called to give oral evidence; and
  • give the reason why the witness will not be called
• In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which—
  
  • identifies the hearsay evidence;
  • states that the party serving the notice proposes to rely on the hearsay evidence at trial; and
  • gives the reason why the witness will not be called.
• The party proposing to rely on the hearsay evidence must—
  
  • serve the notice no later than the latest date for serving witness statements; and
  • if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.

Question 12

Circumstances in which notice is not required for hearsay evidence

Answer 12

• Notice of intention to rely on hearsay evidence does not apply
  
  • To evidence at hearings other than trial
  • To an affidavit or WS which is to be used to trial but does not contain hearsay evidence
  • to a statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceeding

Question 13

Power to call witness for XE on hearsay evidence

Answer 13

• Where a party does not propose to call the person who made the original statement to give oral evidence,
  
  • the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
    
    • An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.

Question 14

Power to attack credibility of author of hearsay statement

Answer 14

• Where a party does not propose to call the person who made the original statement to give oral evidence; and another party wishes to call evidence to attack the credibility of the person who made the statement,
  
  • the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.
    
    • A party must give notice not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.

Question 15

Safeguard in relation to hearsay evidence

Answer 15

• Notice requirements can be excluded by agreement of the parties and duty to give notice can be waived by the person to whom notice is required to be given
• Failure to give notice does not affect admissibility of evidence but may be taken in to 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 in accordance with section 4

Question 16

Considerations relevant to weighing of hearsay evidence

Answer 16

• Regard may be had, in particular, to the following—
  
  • whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
  • whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
  • whether the evidence involves multiple hearsay;
  • whether any person involved has any motive to conceal or misrepresent matters;
  • whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
  • whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Question 17

Previous convictions as evidence in civil proceedings

Answer 17

• In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or [of a service offence (anywhere)] shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether or not he is a party to the civil proceedings
• Shall be taken to have committed that offence unless the contrary is proved
  
  • Any document that prove the conviction or relevant to is shall be admissible and shall be taken to be a true copy of the document unless the contrary is shown