Disputes Resolution 7: Evidence

Question 1

What is the difference between direct and circumstantial evidence?

Answer 1

Direct
- oral evidence of a witness who perceived the facts

Circumstantial
- evidence that does not directly establish a fact but that allows the court to decide whether a particular fact existed
- includes opinion evidence (for experts)

Question 2

What must be included in a Witness Statement

Answer 2

• signed by witness
• statement of truth
• relationship to party
• (if parties lawyer for interim application where witness need not attend then firms name & address, and confirmation that they are legal representative to be given. Evidence to be given in : “I’m am informed that” format)

Question 3

What happens if it is not possible to obtain witness statement before date of exchange

Answer 3

Party can serve witness summary with permission of court (must be served in same timeframe as witness statements)

Good if witness is out of country or unwilling to sign witness statement

• Summary must identify witness and summarise factual issues their evidence will cover

Question 4

What happens if a party fails to serve a witness statement?

Answer 4

• cannot call on witness to give evidence unless court gives permission
• can still apply to adduce evidence despite failure to serve on time if they can give a good reason for the failure

Question 5

Affidavit (what is it and when must it be used)

Answer 5

Like witness statement but must be sworn under oath (to solicitor)

Used for:
- freezing injection
- search orders

Question 6

What is Hearsay Evidence

Answer 6

Can be oral or in writing but:
- must have been made out of court, and
- its purpose must be to prove the truth of what is being said

All witness statements are hearsay until witness goes to court

Question 7

What is Evidence in Chief

Answer 7

Evidence given by witness in court (basically their witness statement once they have sworn an oath)

Different to answers they give in a cross examination

Question 8

What will a court consider when considering how much weight to give hearsay evidence?

Answer 8

Consider:
- whether it would have been reasonable/practicable to force witness to attend
- if original statement was made at time of events
- if there is multiple hearsay (layered)
- motive to misrepresent the position stated in the hearsay or to conceal facts
- if original statement is edited
- if events leasing to evidence being presented constitute an attempt to prevent evaluation as to its weight

Question 9

What is the process of relying on hearsay evidence

Answer 9

• party wishing to rely on it must serve notice to opponent (if witness is not attending trial)
• however, if witness is attending trial then service of witness statement is notice (if they will give oral evidence)
• other party may seek to call witness at trial
• other party may seek to attack their credibility at trail by serbing notice of intention to do so in 14 days or receiving hearsay notice

Question 10

When can a witness be declared a hostile witness and what effect does this have?

Answer 10

If witness shows significant lack of cooperation to tell the truth for their party or give evidence inconsistent with their witness statement party can ask judge to make them hostile witness

If so own party can cross-examine on the facts of the case

Question 11

Are Relevant Convictions admissible as evidence

Answer 11

Convictions can be used to prove that the relevant party committed an offence

• In car accident case, the fact that A was convicted of driving with undue care can be used to some they share some blame for the accident

Question 12

Can previous incidents/conduct be used as evidence

Answer 12

Can be used as evidence of similar conduct in the case in question, so long as it is relevant.

Question 13

What is a Notice to Admit Facts? What is the process?

Answer 13

If party thinks opposition will admit to some facts then can serve Notice no later than 21 days before trial.

If admitted then deemed established

If not admitted but later proved, court may order party who refused admission to pay costs associated with proving them (regardless of if they lose or win case at large)

Question 14

What is a Notice to Prove? What are the requirements?

Answer 14

If party does not think some of the oppositions docs are authentic can serve notice

Requirements of Notice
- must specify docs being challenged
- Must be served either 1) by last day for witness statement exchange, or 2) within 7 days of disclosure of docs

Outcome
- if authenticity of docs are proved at hearing court may make cost order against serving party

Question 15

What is a Letter of Request?

Answer 15

used when court asks another court in another jurisdiction to take evidence on its behalf (orally or in writing)

• for international witnesses who are unwilling to provide a statement

Question 16

Inadmissable Evidence List

Answer 16

• opinioin evidence (other than experts)
• privileged evidence
• without prejudice communications (settlement offers)
• evidence protected by public interest immunity
• irrelevant evidence

Question 17

Can otherwise admissible evidence be disallowed

Answer 17

Court has discretion to disallow evidence

For example
- oral evidence
- 3rd witness who’s testimony will be substantially the same as others

Question 18

Who can be called as an expert witness

Answer 18

Anyone with knowledge or experience of a particular field or discipline.

• no formal degree necessary

Question 19

What are the conditions of expert witnesses opinions?

Answer 19

• it must depend on specialist knowledge, skill or training (and should not be legal - judge can handle that)
• Expert must demonstrate that they can be regarded as a true expert in relevant field
• Expert must give evidence to a reasonable degree of certainty regarding their opinion, inference, or conclusion, and
• expert must be able to demonstrate the basis of their opinion

Question 20

Duty of Expert witnesses

Answer 20

Owe an overriding duty to the court.

Must exercise indépendance, integrity and impartiality.

Question 21

What is an Expert Report? Who is it addressed to and what is included

Answer 21

Expert evidence generally given as written report to the court

Should be:
- indépendant/uninfluenced
- provided objective/unbiased opinion
- State facts on which opinion is based
- make clear when an issue is outside experts experience or where there is insufficient evidence or research on which to base an opinion

Question 22

Conditions for Expert Evidence to be given orally

Answer 22

Party can request it if:
- it is likely to have an impact on the outcome,
- it will assist the judge,
- there is a risk of injustice if evidence is not tested, and
- costs of experts attending are not disproportionate

Question 23

Can an expert change their opinion?

Answer 23

Yes, they can at any time but should notify their instructing solicitor promptly

Question 24

How are single joint expert chosen?

Answer 24

• ideally parties agree on one
• if not the court will choose from a list provided by both parties

Question 25

Single Joint Expert vs Agreed Expert

Answer 25

Single Joint
- used in fast track and sometime multi track
- jointly instructed by both parties

Agreed Expert
- generally for PI claims
- nominated and instructed by claimant’s representative
- D retains right to instruct own expert if unhappy

Question 26

Reasons for court to allow parties to instruct their own experts?

Answer 26

More likely in multi track cases vs fast track

Reasons include:
- complex issues and high value
- more effective to use existing experts from pre action phase
- there are several schools of thought relevant to claim
- issue has huge significance in outcome of action

Question 27

Expert evidence and privity

Answer 27

Instruction to and an experts report is privileged

But to rely on it it must be disclosed and loses privilege. Then the other party can rely on it

Question 28

How can parties question an expert witness

Answer 28

Parties can ask questions within 28 days of sending report

Questions to be proportionate, for clarification of report

Must send copy of questions to other side

Question 29

When must there be discussion between experts

Answer 29

When parties have own experts generally a without prejudice discussion between experts.

Can take place at any time by arrangement of the parties and be via phone

This is to identify issues and see which can be agreed on.

Lawyer cannot be present

Question 30

Who decides if expert witnesses are necessary

Answer 30

The courts decided with regard to overriding objective

Question 31

What might prevent a witness being able to give evidence?

Answer 31

Witness must be competent
- only then can be lawfully called to give evidence
- not competent if they lack mental capacity

Question 32

Can a witness statement still be used by either party if witness is not called to court?

Answer 32

Yes treated as hearsay evidence
- other party can refer to statement

Question 33

What are the rules/procedures for instructing expert witnesses?

Answer 33

• must serve a copy of directions order on expert