DR 11 - Witness and expert evidence Flashcards
What is a witness in legal proceedings?
A person who gives direct evidence based on what they have perceived with their own senses.
What is an expert witness?
A highly knowledgeable person who provides impartial advice to the court on specialist matters.
What are the three types of admissible evidence?
- Documents – Disclosed and available for inspection.
- Witness evidence – Given by witnesses of fact and expert witnesses.
- Real evidence – Physical objects presented in court.
What powers does the court have over evidence?
The court can:
- Decide which issues require evidence.
- Limit or exclude evidence.
- Specify the form of evidence.
- Control cross-examination.
When are witness statements exchanged?
The court gives directions for exchange at the allocation and case management stage.
What happens if a party fails to serve a witness statement on time?
That witness cannot give oral evidence unless the court gives permission.
Can parties extend the deadline for serving witness statements?
- Yes, by agreement (up to 28 days) if it does not affect hearing dates.
- Beyond this, a court application is needed.
What happens if statements are served late?
A party must apply for relief from sanctions, or the witness may not testify.
Can a witness expand on their written statement in court?
Yes, but only:
- With the court’s permission.
- If it relates to new matters since the statement was served.
- Not to introduce late evidence unjustifiably.
Can the court limit cross-examination?
Yes, the court has discretion to do so.
How does a witness statement for an interim hearing differ from a trial statement?
- Opening paragraph states the purpose of the statement.
- Closing paragraph specifies the action sought from the court.
Example: “I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment.”
What must a witness statement include?
- Every fact the witness intends to prove.
- In the witness’s own words.
- Verified by a statement of truth.
What happens if a witness makes a false statement?
They may face contempt of court proceedings.
Are witnesses allowed to give opinions?
Generally, no, except for:
- Perceived facts (e.g., “The car was speeding”).
- Expert opinion (specialist analysis under the Civil Evidence Act 1972).
Who must sign a witness statement?
The individual witness – not a company or organization.
What additional confirmations are required in the Business and Property Courts?
- Documents referred to by the witness must be listed.
- A legal representative’s confirmation that the witness has followed court rules.
What is an affidavit?
A sworn written statement made before an authorized officer, rather than verified by a statement of truth.
When is an affidavit required?
- For search orders or freezing orders.
- If a party chooses to use an affidavit instead of a witness statement.
What types of evidence have special rules?
- Opinion evidence.
- Privileged evidence.
- Hearsay evidence.
What is hearsay?
- Oral or written statement.
- Made outside court.
- Submitted to prove the truth of the statement.
Example: A technician says, “The bolt was worn away.” If the technician dies, their statement is hearsay evidence.
When must parties give notice of hearsay evidence?
- If hearsay is part of a witness statement, no extra notice is required.
- If the witness will not testify, the other party must be informed.
- Otherwise, formal notice must be given.
What happens if notice is not given?
The evidence remains admissible, but the court may reduce its weight.
Does hearsay include photos or models?
Yes, if they contain representations of facts.
What happens if proper notice is not given?
The evidence may not be admissible at trial.
When can expert evidence be used?
- Only if required to resolve the case.
- With court permission (granted at case management).
Are expert reports required in small claims and fast-track cases?
- Usually restricted to one expert per issue.
- Often by a single joint expert.
What is the expert’s primary duty?
To help the court, not to support the party instructing them.
What must an expert report contain?
- Expert’s qualifications.
- Facts and instructions relied upon.
- Summary of conclusions.
- Statement of truth confirming compliance with CPR 35.
What happens if a party does not exchange their expert’s report?
The report cannot be used at trial unless the court gives permission.
What is a single joint expert?
- One expert agreed upon by both parties.
- Encouraged in pre-action protocols.
Can a party challenge the single joint expert?
Yes, but they must prove the expert went beyond their expertise or acted incompetently.
What is a joint expert meeting?
A court-directed meeting where experts:
- Discuss points of agreement and disagreement.
- Produce a joint statement.
Can legal representatives attend joint expert meetings?
Usually not, unless the court allows it.
What is hot-tubbing?
A process where:
- Experts give evidence at the same time.
- Judge and experts interact directly.
Can a party replace an expert who gives an unfavorable report?
- Not without court permission.
- The court may require disclosure of the first report to prevent ‘expert shopping.’
