Disputes, Evidence and Trial Flashcards
Key points about evidence in civil litigation?
- if you want to admit evidence it must be relevant
- Main from of evidence is witness statements and exhibits
- other form is expert evidence
- witness statement must be fact, NOT opinion
- Perceived facts - what witness perceives to be true, but is more likely to be opinion. Opinion based on what they believe to be true.
- Perceived facts - can be admissible
- Expert evidence - IS opinion evidence, BUT must be relevant
Hearsay in civil litigation, what is it and how is it dealt with?
- it is written/oral statement by a witness made out of court then repeated in court to prove matter to be true
- relevance principles apply
- repeated once = 1st degree hearsay
- Civil litigation provides hearsay IS admissible , provided it is relevant. Up to Judge to consider weight of it. If repeated and repeated will hold less weight.
- If want to use hearsay evidence, 2 possible procedures;
1) - if witness coming to trial - serve on other side.
2) - If witness not coming; - serve statement together with hearsay notice.
- whole witness becomes hearsay
- other party DO have right to cross examine witness. Must make application to cross examine NO LATER THAN 14 DAYS - CLEAR DAYS after service of the hearsay notice
1) - Witness Evidence in civil litigation.
2) - What is the exception to witness evidence?
1)
- exchanged between parties, times set by directions
- Must be relevant and of fact
- forms part of trial bundle
- Witness statement contains all evidence that the witness will give orally at court
- deemed to deliver statement as in trial bundle - then moves to cross examination
- sign statement of truth
- statements are used for the majority of applications. Summary judgements etc, interim apps (application, draft order and statement)
2) - Affidavit
- sworn statement evidence in front of solicitors
- technically can be used at trial and in other interim applications
- BUT because of formalities only time it is used is for freezing injunctions and search orders.
- all other interim applications and trial need witness statements
Expert Evidence
- used by both parties and have opinion on matters in issue
- must ONLY use experts reasonably required in proceedings
- how many experts to be used will be determined at case management conference, as indicated by parties in filed directions questionnaire.
- MUST get courts permission to use experts
- FAST TRACK (FT)cases = simple, less financial stake and less complicated.
- FT no case management conference, that is D/W at allocation where directions given.
- FT normally uses single joint expert, both parties share expert and prepare joint instructions and share cost.
- In FT only 1 expert allowed
- Intermediate case = most can have is 2 experts per party
- In Multi track - can have more than 2 per party on more than one issue.
Requirements of an EXPERT WITNESS
- overriding duty to act
- can be a risk to party as can give opinion not favourable to party using it. Experts must give true evidence
- can seek guidance from court if unsure about something
- Overriding duty overrides contractual duties to relevant parties. Any attempt to bind to opinion cannot work under CPR rules
- expert produces report giving opinion. Under CPR report must contain qualifications and in particular confirmation of compliance with overriding duties.
- if 2 experts produce reports and serve on parties, and they differ on different things. Court can order a without prejudice discussion. Experts and lawyers get together and try to narrow issues in dispute. If matters still disputed they then provide final summary to court containing issues to be addressed at trial.
Overriding objective 1.1
1.1(1) - justify at proportionate cost
1.1(2) - parties on equal footing, save money - objective to be quick and cheap, proportionate, complainant and defendant have a duty to comply with
Trial
- after statement case served and filed on defence then moves to track allocation
- Before track allocation have provisional allocation, then directions questionnaire completed by parties and court decides allocation.
- Court will then issue date case management conference (CMC)or fast track (standard directions) and date for trial set
- At CMC CT issues directions and PROVISIONAL date for trial
- Using pre trial checklist/listing questionnaire CT checks if anything further needs to be done before trial, and if any further directions needed, statement of costs so far also provided.
- CT always wants parties to be transparent and efficient.
- If court happy with responses will confirm date, time and venue for trial.
- If both parties fail to file pre trial checklist then case STRUCK OUT
- If 1 party fails to file pre trial checklist then there will be a hearing and costs implications. Ct will give party 7 further days to file.
Trial bundle
- prepared by claimant
- documents necessary in a trial bundle=
- statements
- Exhibits
- Disclosure documents
- experts
- disclosure
- answers to directions questionnaire
- bundle served on defence and filed at court
- Must be served no more than 7 or less than 3 clear days before trial
- must be indexed
- In MT case claimant also provides case summary
- MT case can have PTR, if
- really complex
- lots witnesses and experts
- then will confirm date, time and venue of trial
Witnesses- if won’t attend?
- attendance is voluntary
- if worried won’t attend apply for witness summons
- Court then serves summons at least 7 clear days before trial
Trial procedure
1) - preliminary issues - making sure no further applications to make and that ready for trial, no settlement on cards
2) Claimants opening speech
3) Exam in chief and cross exam
4) Def and cross exam
5) Closing speeches
6) Judgement FT & IT - same day MT - at later date
Judgement
- varies
- FT & IT - sum only assessment, on same day and costs fixed
- MT
- more likely judgement later date
- costs at detailed cost assessment hearing
Key points of civil litigation
1) Liability
2) Quantum
3) Interest
4) Costs
1) Liability
- always a winner and looser
2) Quantum
- damages that defence must pay if claimant successful
3) Interest - Interest will be awarded to claimant on damages
4) Costs - loser pays winners costs in MT, likely there is to be a separate costs hearing to determine amount of costs payable
If courts orders costs to be paid then must be paid within 14 days, unless otherwise stated.
SUMMARY of requirements
1) PRE TRIAL
2) JUDGEMENTS
3) INTEREST
1) PRE TRIAL
- pre trial checklist - both parties - must file at court on specified date - and serve on each other
- pre trial review - for MT complex cases
- Trial bundle - prepared by complainant and served on defence
- Case summary - complainant prepares with Defence if possible
- witness summons
2) JUDGEMENTS
- Complainant wins = damages and interests and costs
- Defence win = costs from complainant
- all payments within 14 days
3) INTEREST
- Interest given IF claimant claimed for it and stated basis for it
- Interest in para 36 costs varies
