Disputes (Evidence)

Question 1

What is the general rule for witness evidence at trial?

Answer 1

Any fact which needs to be proved by the evidence of witnesses at trial will be by oral evidence (CPR 43.2(1)(a)).

Question 2

What is a witness statement?

Answer 2

It is a written statement signed by a person which contains the evidence that the person would be allowed to give orally.

Question 3

How is a witness statement used?

Answer 3

It is exchanged with other parties to save time and costs at trial and facilitate settlement, allowing parties to evaluate the merits of their cases.

A witness statement usually stands as the witness’s evidence in chief at trial.

Question 4

Does the witness give oral evidence?

Answer 4

• A witness statement usually stands as the witness’s evidence in chief at the trial.
• However, the witness attends trial so that the other party’s counsel can cross-examine the witness, and then be re-examined by their own party.

Question 5

Who establishes when witness statements should be exchanged?

Answer 5

The court usually gives directions at the allocation and case management stage, which will include a date for exchange.

Question 6

Is exchange of witness statements sufficient to rely on them?

Answer 6

No, a party must call the witness to give oral evidence at trial or put the statement in as hearsay evidence.

Question 7

What happens if a witness statement is not served in time?

Answer 7

The witness may not be called to give oral evidence unless the court gives permission (CPR 32.10).

Question 8

Can time be extended to serve the witness statement?

Answer 8

Yes, parties can agree in writing to extend the time for serving witness statements by up to 28 days, without needing court approval, provided it does not affect the hearing date. If no extension is agreed, an application for relief from sanctions must be made.

Question 9

What is the general rule for using a witness statement at trial?

Answer 9

A witness statement usually stands as the witness’s evidence in chief at trial.

Question 10

What discretion does the court have regarding a witness giving oral evidence?

Answer 10

The court may grant permission to amplify the witness statement or give evidence on new matters arising after the statement was served, but it is unlikely to allow amplification of evidence that is late or unjustified.

Question 11

What is the rule for interim hearings regarding witness evidence?

Answer 11

Any fact needing to be proved by witness evidence at interim hearings must be proven by written evidence (CPR 32.2(1)(b)).

Question 12

What is the general content of a witness statement?

Answer 12

It must cover every fact that needs to be proved and be in the witness’s own words, although it can be drafted by a lawyer.

Question 13

What is the rule regarding opinion evidence in witness statements?

Answer 13

Opinions of witnesses are generally not admissible unless they are based on perceived facts or are from an expert in the relevant field.

Question 14

What is percieved fact?

Answer 14

Opinion is admissible if it constitues perceived facts

A witnesses of fact can give opinion if conveying relevant facts personally perceived.

For example ‘the car was driving fast’ or ‘A was drunk’

Question 15

What happens if a false statement is made in a witness statement?

Answer 15

A false statement without honest belief in its truth may lead to contempt of court proceedings.

Question 16

Can a witness statement be used in other proceedings?

Answer 16

A witness statement can only be used in the proceedings in which it is served, unless permission is given or it has been used in a public hearing.

Question 17

What is an affidavit?

Answer 17

An affidavit is a written statement of evidence that is sworn before a person authorized to administer affidavits, instead of being verified by a statement of truth.

Question 18

When should an affidavit be used instead of a witness statement?

Answer 18

An affidavit is used when required by the court or rule, such as for a search order or freezing order, or a party may choose to give evidence by affidavit at a hearing other than trial.

Question 19

What is hearsay evidence?

Answer 19

Hearsay is indirect evidence that is made out of court and is being used to prove the truth of the matter stated. It is admissible in civil proceedings under s.1 CEA 1995, but is treated with caution.

Question 20

What is required if a party intends to rely on hearsay evidence at trial?

Answer 20

The party must give notice to the other party that they intend to rely on hearsay evidence.

The type of notice depends on the use of hearsay

Question 21

If hearsay evidence is in a witness statement of a person giving oral evidence at trial, what must the party do?

Notice?

Answer 21

No formal notice is required.

It is deemed served when the statement is served on the party

No separate communication required.

Question 22

If hearsay evidence is in a witness statement and the person is not giving oral evidence at trial, what must the party do?

Answer 22

No formal notice is required, but the other party must be informed (actual notice) that the witness will not be giving evidence at trial with reasons

Question 23

If the hearsay evidence is not contained in a witness statement….

Answer 23

Formal Notice must be given to the other party identifying the hearsay, stating that they wish to rely on it and the reason the witness won’t be called.

Question 24

What are the options on receiving a hearsay notice?

Answer 24

Upon receiving a hearsay notice, the receiving party can request particulars of the hearsay, call for cross-examination, challenge the weight of the hearsay evidence, or attack the credibility of the absent witness.

The party receiving notice can attack the credibility of an asset witness at trial but must notify the adducing party of its intention no later than 14 days after the hearsay notice was served.

Question 25

What are the rules for evidence not contained in a witness statement, expert report or given orally at trial?

Answer 25

Notice must be given to use them!

This includes plans, photographs and models

Question 26

What is expert evidence?

Answer 26

Expert evidence is given by an expert who advises the court impartially on matters within their expertise. A court order is required if a party wishes to adduce expert evidence at trial.

Question 27

When can expert evidence be used in court?

Answer 27

Expert evidence can be used when a court order is obtained and when it is reasonably required to resolve the proceedings (CPR 35.1).

Question 28

Who is an expert?

Answer 28

s.3 CEA allows expert evidences to give opinion on relevant matters on which he is qualified

• The court decide who is an expert.
• The experience of the expert does not need to be formal. However, they should be suitably qualified and experienced.

Question 29

What is the duty of an expert?

Answer 29

The expert’s duty is to help the court impartially, overriding any obligation to the party instructing the expert (CPR 35.3).

Question 30

What is the general rule for expert evidence in the small claims track?

Answer 30

In the small claims track, expert evidence is likely to be restricted, with limits on the number and type of experts that can be called.

Question 31

What is normally the set up for experts in the fast track?

Answer 31

• Oral expert evidence will be limited to one expert per party in relation to any expert field
• Expert evidence in no more than two expert fields
  thereby limiting the amount of experts to four across all parties.
• It will normally be given for evidence from only one expert on a particular issue.

Question 32

What can you expet from experts in the intermediate track?

Answer 32

Expert evidence will be limited to two experts per party

Question 33

How is expert evidence exchanged?

Answer 33

Expert reports must be exchanged in order to be used at trial.

Failure to exchange means the evidence cannot be used unless court permission is granted.

Question 34

What is a Signle Joint Expert?

Answer 34

To save costs, parties can agree to appoint a single joint expert. Even if they do not agree, the court can order a joint expert.

Single joint experts are often ordered in small, fast and intermediate track matters.

Question 35

Once the expert report is recieved, what should parties do if there are queries or concerns?

Answer 35

After expert reports have been exchanged, parties can put written questions to the other party expert (or single joint expert)

• Questions can only be asked once
• They should be used for clarifying the report
• Submit within 28 days of service of the report
• A copy of questions must be sent to the other party

Question 36

What can the court order the experts to do to reach consensus?

Answer 36

The court can direct experts to discuss the issues in dispute with each other and try to reach agreed opinions.

Question 37

Can experts be called to give oral evidence?

Answer 37

The court may also grant permission to call the expert to give oral evidence.

The court can direct expert oral evidence to be given on an issue-by-issue basis or by hot-tubbing

Hot-tubbing is where all/some evidence of experts from similar disciplines is given concurrently where the judge asks the experts in turn for their views on the issue.

Question 38

What happens when expert reports are unfavourable?

Answer 38

If an expert report is unfavourable, the party can follow the order:

• Put questions to the expert - within 28 days
• If the advise differs substantially from what was expected, the party can seek permission from the court to call another expert.
• If there is not a direction for the expert to give oral evidence, seek such a direction

Question 39

What is the privilege regarding expert reports?

Answer 39

The letter of instruction to an expert is not privileged, but the expert report itself is privileged, with no exceptions.

Question 40

“Based on the loud screeching noise and the way the car swerved, I believe the driver lost control because the brakes failed.”

Is this admissible in a witness statement?

Answer 40

No, because it implies a technical conclusion that requires expertise in accident reconstruction or automotive engineering.

While the ‘perceived facts’ exception does allow for some opinions to be expressed by witnesses of fact, it does not extend to technical conclusions requiring expertise.

Question 41

If a party who has served a witness statement does not call the witness to give evidence at trial or put in the witness statement as hearsay evidence, can other parties use it, and if so, how?

Answer 41

Yes

Any other party may put the witness statement in as hearsay evidence without court permission

Question 42

Can you agree with the other party to vary an unless order?

Answer 42

Yes but the extension must be made by written agreement.

Question 43

Can a witness add to their witness statement when giving oral evidence?

Answer 43

A witness may amplify their witness statement with the permission of the court and give evidence in relation to new matters, but the court will only give permission if there is good reason not to confine the evidence to the contents of the witness statement

Question 44

Can witness statements put in evidence at a public hearing be used for other purposes unconnected with the proceedings?

Answer 44

Yes

Although there is a general rule that witness statements may only be used for purpose of the proceedings in which it is served, there is an exception where the witness statement has been put in evidence at a hearing held in public

Question 46

What must a party do to rely on evidence contained in a witness statement at trial if it has been served?

Answer 46

No further steps needed.

Serving a witness statement in accordance with court directions constitutes notice of intention to rely on hearsay evidence contained within it.

Question 47

If the Pre-Action Conduct and Protocols apply, what must parties consider in realtion to expert evidence?

Answer 47

It is necessary to obtain expert evidence, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.

Question 48

Must an expert reply if questions have not been put within 28 days?

Answer 48

No, the expert is not obliged to reply if the request was not made in time

Question 49

If a defendant instructs an expert and discloses the expert report but later discontinues the claim, can remaining parties (e.g. C and D2) use the report?

Answer 49

Yes

Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at trial without either the court’s permission or the parties’ consent, so any party may use that expert’s report as evidence at trial

Question 50

What if an expert fails to answer questions put to them in writing within the prescribed time?

Answer 50

The instructing party may not be permitted to rely on the evidence of the expert and may also not recover the fees and expenses of that expert from the defendant.

Question 51

If an expert recieves questions that are inappropriate, how should they proceed?

Answer 51

They should file a request for directions with the coiurt.

However, the expert should send a copy of the request for directions to the party who has instructed them at least seven days before they file it. They must also send a copy of the request to all other parties at least four days before it is filed

Question 52

To whom should an expert address the report?

Answer 52

The expert should address the report to the court not to the party instructing the expert.

Question 53

When must a solicitor informt heir client of a cost order made?

Answer 53

Within seven days of the order being made and explain why it was made.

Question 54

Who can use an admission of guilty in a civil trial following a notice to admit facts?

Answer 54

Where a party makes any admission in response to a notice to admit facts, the admission may be used against them only in the proceedings in which the notice to admit is served; and by the party who served the notice.

For example, in a trial with C and 2 Ds, any admission in response to Cs notice by DQ, cannot be used by C against D2.