Disputes - Interim Evidence (11) Flashcards
How does the court oversee the evidence procedure?
Evidence: Parties rely on evidence to prove or counter any issue in dispute. There are strict rules (CPR 32; 33; 35).
(1) Directions: Courts will issue directions on evidence, regarding the: a) issues requiring evidence; b) type of evidence required; c) number of witnesses and experts permitted; and d) way evidence is presented to the court.
(2) Overriding Objective: These directions aim to keep proceedings just and at proportionate cost.
What is the burden and standard of proof in civil proceedings?
Burden and Standard of Proof: The burden and standard of proof relates to: a) who must prove fault; and b) the extent to which fault must be proved.
Burden of Proof
Burden of Proof: By default, the Claimant has the burden to prove all facts not admitted by the Defendant.
(1) Defendant Burden: Defendants have the burden to prove any counter allegations, such as contributory negligence, failure to mitigate, and counter-claims.
(2) Exception: If the Defendant is criminally convicted of a corresponding civil action, they then have the burden to prove that they were not responsible (s11 CEA 1968).
>I.e. Defendant was criminally convicted of dangerous driving, and is also being sued in tort of negligence for a crash resulting from that driving.
Standard of Proof
Standard of Proof: Claims must be substantiated on a ‘balance of probabilities’. This means that it is more likely than not that the allegation is true, or favoured over the alternative (i.e. better than 50:50).
What comprises witness evidence?
Witness Evidence: Witness evidence refers to the testimony of non-expert witnesses, and can be crucial to establishing or disproving fault. There are a number of rules and types, including:
(1) Witness Statement: Written account of facts containing evidence that would be orally admissible. These act as evidence-in-chief, with the witness merely confirming the contents at trial. They are exchanged before trial.
(2) Witness Summary: Written summaries are produced when a witness is unable or unwilling to produce a witness statement. Party applies to court with the witness’s name, address, known evidence, and the matters on which they would question them. It is the best case alternative, but treated critically at court.
(3) Witness Affidavit: Evidence made on sworn oath (rarely used). Certain evidence must be given on affidavit, such as interim applications for freezing injunctions and search orders.
What are the rules of witness evidence?
Rules of Witness Evidence: Witness evidence must contain relevant facts and comply with the rules against hearsay.
(1) Relevant: Evidence must relate to an issue in dispute between the parties.
(2) Factual: Evidence must contain fact, not opinion. However, a witness may present an honest and wide opinion from facts personally perceived.
>I.e. Witness can say they saw Defendant ‘driving fast’, but they cannot say they saw Defendant ‘driving too fast’.
>Witnesses cannot draw conclusions, i.e. ‘I know he was at fault because I’ve seen it happen before’.
(3) Hearsay: Special rules apply to hearsay evidence, in addition to the aforementioned requirements (below).
>Rules do not apply to small claims track.
What is hearsay evidence?
Hearsay Evidence: Hearsay evidence refers to: a) a statement made out of court; b) repeated in court; c) to prove the truth of the matter stated (s1(2) CEA 1995).
(1) First-Hand: Statement was relayed directly to witness.
>I.e. ‘Brian told me Bill was drinking’.
(2) Multiple: Statement was relayed through more than one person before reaching witness.
>I.e. ‘Brian told me that Bob told him that Bill was drinking’.
How is hearsay evidence admissible?
Admissibility: Hearsay is inherently more prone to fabrication and inaccuracy. It must therefore be both relevant factual evidence, and comply with hearsay notice requirements (CPR 33).
(1) No Notice: No notice is required if the statement containing hearsay is confirmed by the witness in oral evidence at trial. The witness statement itself constitutes notice (and the opposition can cross-examine).
(2) Notice: Notice is required if hearsay is being given and the factual witness will not attend trial (s2 CEA; CPR 33). This is served in addition to the witness statement (as the opposition cannot cross-examine).
Contents: a) Identify evidence; b) state reliance at trial; and c) give reasons for non-attendance.
Effect: Non-service of notice does not render the hearsay inadmissible, but may incur costs sanctions and be viewed more sceptically.
Considerations: Courts consider written-only hearsay more critically, with regard to: a) its relevance; b) its importance; c) other available evidence; and d) its probative value relative to other available evidence.
Safeguards: Judges must consider statutory safeguards when weighing the evidence: a) could the statement-maker have been called; b) was the statement made at the time of action or later; c) is it multiple; d) is there evidence of misrepresentation; e) is there evidence of late submission/unfairness (s4).
What is a witness statement?
Witness Statement: Witness statements are the primary form of witness evidence. They contain relevant admissible facts, and are simply confirmed by the witness at trial or interim hearing. The witness can then be cross-examined in full.
(1) Format: The statement sets out facts in chronological order. Numbers numbers, words words (5 January 2022).
(2) Attachments: Documents can be attached. They are referred to formally, i.e. ‘I refer to AP1’.
What are the contents of a witness statement?
Contents: Witness statements contain and must comply with various content requirements to be admissible (CPR PD32).
(1) Heading: Title of proceedings, witness name, statement reference, and date (at start or end). ‘I will state as follows:’.
(2) Opening: Witness address and occupation, whether statement was made in the course of employment and, if so, name and relevance of employer to proceedings, and authorisation.
(3) Evidence: Statement sets out evidence of witness in first person, in their own words and language. They must also indicate how the statement was prepared (i.e. face to face with a solicitor).
Own Knowledge: Evidence should be own knowledge or, if not, must state the source of the knowledge and reasons for inclusion.
Own Language: Evidence must be in the witness’s own language. Details of any translation must be provided.
Summary: Evidence should be summarised at the end.
(4) Statement of Truth: Statement is verified by a statement of truth made and signed by the witness only.
How are witness statements used at trial?
Use at Trial: The use of witness statements at trial is as such:
(1) Bundle: The Judge will read all witness statements as provided in the trial bundle.
(2) Oath: At trial, the witness will take to the witness box and confirm the statement on oath. This is their evidence-in-chief.
(3) Cross-Examination: The witness will be cross-examined.
(4) Re-Examination: The witness may be examined by the instructing party if there is a good reason to do so, such as to resolve ambiguity. This requires permission of the court.
How and when are witness statements exchanged?
Exchange of Witness Statements: Witness statements must be exchanged before trial at a date set by the court. It is usually simultaneous between parties to prevent last minute advantages being gained.
(1) Date: Usually some weeks after disclosure and inspection, and before expert evidence.
>Approximately 10 weeks after fast-track allocation.
(2) Non-Exchange: Failure to serve a witness statement on the other party will generally rule the contents inadmissible at trial, subject to court permission or party agreement.
When is expert evidence admissible?
Admissibility: Alongside requiring permission of the court, only admissible expert evidence can be used at trial. There are four requirements (s3 CEA 1972).
(1) Assistance: The evidence must be necessary to resolve a relevant issue in dispute or assist the judge in doing so.
(2) Qualification: The expert must be qualified, meaning they have relevant knowledge or experience in the given field. This does not refer only to academic qualifications.
(3) Reliability: The knowledge or experience must derive from a reliable body, usually meaning an uncontroversial and publicly accepted body through which the expert qualified.
(4) Impartiality: Expert evidence must be created impartially, as experts act primarily for the court, not the party.
What duties does an expert witness have?
Duties of Expert: Experts owe two duties (CPR 35).
(1) Duty to Court: Experts have an overriding duty to provide unbiased and impartial opinions to the court. They should not assume the role of advocate.
>In effect, their evidence should be the same regardless of which party has instructed them.
>Employees of a party may act as their expert, provided they are aware of and can showcase the duty to be impartial - this is difficult to establish in practice (Field v Leeds CC).
(2) Duty to Party: Experts must exercise reasonable care and skill when producing evidence, even though it must be impartial (s13 SGSA). They may be sued in negligence for a poor quality report (Jones v Kaney).
When will expert evidence be permitted by the court?
Permission of Court: Expert evidence will only be permitted to the extent reasonably required to resolve the issues in dispute. This is in order to comply with the overriding objective, as expert evidence is expensive.
(1) Permission of Court: The court must permit the use of expert evidence, as determined at the allocation or case preliminary management stage. This will differ by track.
(2) Relevant Factors: Parties may request or agree on experts. Where this is the case, they must inform the court if possible of: a) their name; b) field of expertise; c) relevant knowledge and experience; and d) relevance to an issue.
(3) Necessity: Expert evidence must be strictly necessary to deciding an issue in dispute, or assist the judge in doing so. This will differ by value, complexity, cost and importance of case or specific issue.
What different types of order are there for expert evidence?
Types of Order: Courts will order on expert evidence as they see fit. This can include:
(1) Prohibition: Full prohibition on use of expert evidence.
(2) Limitation: Limitation on experts.
>Fast track normally limited to a single joint expert, and at most two experts per party.
>Intermediate track limited to two experts per side.
(3) Agreement: Parties may be required to agree on an expert.
(4) Written-Only: Expert evidence may be restricted to use of written reports only, not oral testimony.
What is the procedure for a single joint expert?
Single Joint Expert: Single joint experts are usually ordered for fast-track cases to narrow the range of opinion on the given dispute. This is usually compliant with the overriding objective.
(1) Selection: Parties may agree on the SJE. If they cannot, the court will select from a list of chosen candidates.
(2) Expert Evidence: SJE evidence is typically provided by written report only (no oral testimony).
(3) Cost: Costs are shared by the parties (generally not recoverable).
