Civil Trial and Evidence (Syllabus 21) Flashcards
How is the trial of a fast track or multi-track case conducted?
No fixed rules - conducted in accordance with any order previously made by the judge (unless the judge directs otherwise)
PD28.8 + PD29.10 give an indication of what will usually happen
What do you have to do if you want to rely on evidence that is not (a) contained in a witness statement, affidavit or expert’s report, (b) given orally at trial, or (c) hearsay evidence receivable at trial? Effectively, we’re talking about plans, photographs or models
You need to give notice to the other parties (unless the court orders otherwise).
Time limits:
- If you want to rely on it as evidence of any fact -> not later than the latest date for serving witness statements
- If there are not to be any witness statements -> At least 21 days before the hearing at which the party proposes to put in the evidence
- If you intend to put in the evidence solely in order to disprove an allegation made in a witness statement -> At least 21 days before the hearing at which the party proposes to put in the evidence
- If it forms part of expert evidence (but is not contained in the expert’s report) -> at the time when the expert’s report is served on the other party
- If you want to produce it for any reason other than as part of factual or expert evidence -> at least 21 days before the hearing at which you propose to put in the evidence
What powers does the court have if a party or all parties fail to attend a trial?
- It can proceed in the absence of a party (i.e. give judgment in its absence)
- If no one attends -> can strike out the whole proceedings
- If C doesn’t attend -> can strike out claim + defence to counterclaim
- If D does not attend -> can strike out D’s defence or counterclaim or both
N.B. if a party that has served witness statements fails to attend trial the court is not obliged to take account of the witness statements unless proper hearsay notice has been given because obviously usually you have to call witnesses to give oral evidence (which you would not be doing if you fail to attend trial, obviously).
What can parties do if their claims/defences have been struck out because they failed to attend the trial? What can they do if judgment/order has been given in their absence?
(1) If proceedings/part of proceedings have been struck out -> can apply to the court to restore proceedings
(2) If judgment/order has been given in absence -> can apply for the judgment/order to be set aside
In either case, the court can only grant the application if:
- (i) the applicant acted promptly when they found out that the court had exercised the relevant power
- (ii) the applicant had a good reason for not attending the trial; and
- (iii) the applicant has a reasonable prospect of success at the trial
N.B. If all three hurdles are met it would be very exceptional if the court did not grant the application. It has also been held that where the application is granted, the applicant should in many cases be ordered to pay the other side’s costs and pay a sum on account of those costs within a short period.
What guidance do we have on when a party counts as ‘present’ at trial?
Generally, they are ‘present’ if their solicitor attends in person.
However, if the court orders that they attend in person, then it’s not enough if the solicitor attends. Equally, if the court orders physical attendance, video link is insufficient.
If a defence (to a claim or a counterclaim) is struck out by reason of the defendant’s absence, does the claimant still have to prove their claim?
Yes, but will usually be sufficient to refer to the claim form (with statement of truth) or tender witness statements.
N.B. this applies equally to claims and counterclaims and defences to these
What do you have to do if you want to rely on hearsay evidence at trial?
The CPR has been given effect to s. 2(1)(a) of the Civil Evidence Act 1995 as follows:
(1) If the hearsay evidence is (a) to be given orally or (b) not to be given orally but instead contained only in a witness statement -> you need to serve a witness statement on the other parties to the proceedings
- N.B. if no oral evidence of it will be called (i.e. scenario (b)), then the party seeking to rely on it must inform the other parties that they will not be calling the witness to give oral evidence and explain why they are not calling the witness when serving the witness statement
(2) In all other cases (presumably this envisages those circumstances in which you can’t get a witness statement of the evidence, e.g. bc the witness that could give such a statement is unwilling to testify or can’t be found) you need to serve a notice on the other parties which:
- identifies the hearsay evidence;
- states that the party serving proposes to rely on it; and
- gives the reason why the witness will not be called
- must be served no later than the latest date for serving witness statements
- if the hearsay evidence is to be in a document, must supply a copy of the document to any party who requests it
In addition, the 1995 Act also provides:
- The party seeking to rely on the hearsay evidence can (on request) be required to provide particulars of or relating to the evidence as is reasonable and practicable in the circumstances for the purpose of enabling the other party to deal with any matters arising from its being hearsay
- The parties can agree to exclude the requirement to give notice of hearsay evidence
- A party entitled to notice of intention to rely on hearsay evidence can waive their entitlement
What is the effect of failure to comply with the notice requirement regarding the intention to rely on hearsay evidence?
Does NOT affect the admissibility of the evidence, but may be taken into account by the court:
(1) in considering the exercise of its powers with respect to the course of proceedings and costs; and
(2) as a matter adversely affecting the weight to be given to the evidence
In what circumstances are you not required to give notice of intention to rely on hearsay evidence?
There are 4 in total, but I think we only need to really worry about these:
(1) Evidence at hearings other than trials;
(2) Where the requirement is excluded by a PD
What can you do if you want to cross-examine the maker of hearsay evidence?
If the party seeking to rely on the evidence does not propose to call the person who made the statement to give oral evidence, you can apply to the court (within 14 days of service of the notice of intention to rely on hearsay evidence) for permission to call the maker to be cross-examined on the contents of the statement.
If you want to call evidence at trial to attack the credibility of the maker of hearsay evidence, what will you have to do?
If the party seeking to rely on the evidence has not proposed to call the maker of the statement to give oral evidence, then you have to give notice of your intention to call such evidence.
Time frame: not more than 14 days after service of the notice of intention to rely on the hearsay evidence
How does the court determine the weight that should be attached to hearsay evidence?
It shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
In particular:
- whether it would have been reasonable and practicable to have produced the maker of the original statement
- 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
We also saw that the court can draw inferences from the fact that the party relying on it failed to give notice.
Are convictions admissible as evidence in civil proceedings?
Yes if the evidence is adduced for the purpose of proving that the convicted party committed the offence, provided that proving this is relevant to any issue in the proceedings
N.B. you can even adduce such evidence if the convicted is not a party to the proceedings, provided the test is satisfied
By virtue of this rule, not just the fact that a person was convicted becomes admissible, but also: “the contents of any document which is admissible as evidence of the conviction, and the contexts of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose”
Is proof of a conviction conclusive proof of the fact that the convicted committed the offence?
Yes, unless the contrary is proved (i.e. such evidence basically raises a rebuttable presumption)
