Disputes Resolution 7: Evidence Flashcards
What is the difference between direct and circumstantial evidence?
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)
What must be included in a Witness Statement
- 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)
What happens if it is not possible to obtain witness statement before date of exchange
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
What happens if a party fails to serve a witness statement?
- 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
Affidavit (what is it and when must it be used)
Like witness statement but must be sworn under oath (to solicitor)
Used for:
- freezing injection
- search orders
What is Hearsay Evidence
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
What is Evidence in Chief
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
What will a court consider when considering how much weight to give hearsay evidence?
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
What is the process of relying on hearsay evidence
- 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
When can a witness be declared a hostile witness and what effect does this have?
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
Are Relevant Convictions admissible as evidence
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
Can previous incidents/conduct be used as evidence
Can be used as evidence of similar conduct in the case in question, so long as it is relevant.
What is a Notice to Admit Facts? What is the process?
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)
What is a Notice to Prove? What are the requirements?
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
What is a Letter of Request?
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
Inadmissable Evidence List
- opinioin evidence (other than experts)
- privileged evidence
- without prejudice communications (settlement offers)
- evidence protected by public interest immunity
- irrelevant evidence
Can otherwise admissible evidence be disallowed
Court has discretion to disallow evidence
For example
- oral evidence
- 3rd witness who’s testimony will be substantially the same as others
Who can be called as an expert witness
Anyone with knowledge or experience of a particular field or discipline.
- no formal degree necessary
What are the conditions of expert witnesses opinions?
- 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
Duty of Expert witnesses
Owe an overriding duty to the court.
Must exercise indépendance, integrity and impartiality.
What is an Expert Report? Who is it addressed to and what is included
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
Conditions for Expert Evidence to be given orally
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
Can an expert change their opinion?
Yes, they can at any time but should notify their instructing solicitor promptly
How are single joint expert chosen?
- ideally parties agree on one
- if not the court will choose from a list provided by both parties
Single Joint Expert vs Agreed Expert
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
Reasons for court to allow parties to instruct their own experts?
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
Expert evidence and privity
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
How can parties question an expert witness
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
When must there be discussion between experts
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
Who decides if expert witnesses are necessary
The courts decided with regard to overriding objective
What might prevent a witness being able to give evidence?
Witness must be competent
- only then can be lawfully called to give evidence
- not competent if they lack mental capacity
Can a witness statement still be used by either party if witness is not called to court?
Yes treated as hearsay evidence
- other party can refer to statement
What are the rules/procedures for instructing expert witnesses?
- must serve a copy of directions order on expert
