DR 11 - Witnesses

Question 1

What are the courts powers in relation to directions on evidence?

Answer 1

The court can issue directions:

• the evidence it requires
• the nature of the evidence it wants
• the way evidence is to be placed before the court
• exclude evidence
• limit cross-examination

Question 2

How is witness testimony generally given at trial?

Answer 2

Orally

Question 3

What is a witness statement?

Answer 3

a written statement signed by a person which contains the evidence which that person would be allowed to give orally. It is usually the witness’s evidence in chief.

Question 4

If a party has served a witness statement, must they call the witness to give oral evidence at trial

Answer 4

Yes. Or they can put in the statement as hearsay.

Question 5

When does exchange of witness statements normally take place?

Answer 5

After disclosure and inspection.

Question 6

How can the time limit for serving witness statements be extended?

Answer 6

The parties can agree in writing extensions of up to 28 days for serving of witness statements without court approval provided such an extension does not put a hearing at risk.

If an extension will affect a hearing date (or some other deadline) an application to the court should be made.

Question 7

What happens if a witness statement is served late?

Answer 7

An application for relief from sanctions should be made.

Otherwise witness may not be called to give evidence

Question 8

Can a witness add to their witness statement?

Answer 8

The court may permit them to do so if new matters have come to light. But won’t allow this if its a cover-up for deficiencies in the initial statement including when giving evidence orally

Question 9

Does a witness generally give oral evidence at an interim hearing?

Answer 9

No, normally its just the written witness statement that’s used in evidence. Although it is possible for a party to apply for permission to cross examine the person giving the evidence, this is very rare.

Question 10

Are the OPINIONS of witnesses admissible?

Answer 10

No, only statements of fact. Unless:

• perceived facts “she was drunk”
• expert opinion

Question 11

Does each witness statement need to be verified by a statement of truth?

Answer 11

Yes - contempt of court if had no honest belief that the witness statement was correct.

Question 12

Can a witness statement in one proceeding be used for other proceedings?

Answer 12

No - unless
- the witness or
- court has given permission, or
- it has been put in evidence at a hearing held in public.

Question 13

Can a company or partnership be a witness?

Answer 13

No, only individuals

Question 14

Some evidence of fact must be given by affidavit. What are the requirements of an affidavit?

Answer 14

Must sworn before a person authorised to administer affidavits.

Question 15

What are the differences between an affidavit and a witness statement?

Answer 15

Affidavit includes:

“state on oath”
“make this affidavit”
“There is now shown to me marked …” (for docs referred to)

Question 16

What are the rules for the jurat statement at the end of an affidavit

Answer 16

• be signed by all deponants
• be signed by the person before whom the affidavit was sworn
• contain the full address of the person before whom the affidavit was sworn
• follow immediately on from the text and not put on a separate page.

Question 17

Is hearsay admissible in civil proceedings?

Answer 17

Yes

Question 18

What is hearsay?

Answer 18

• an oral or written statement
• made out of court
• which is being adduced in court to prove the truth of the matter stated.

Question 19

When is notice of hearsay evidence required / not required?

Answer 19

No notice is required if the evidence is in a witness statement of someone who will appear at court.

No notice is required if the evidence is in a witness statement of someone who will NOT appear at court. But the other party must be informed that the witness will not be giving evidence with reasons.

In all other cases, notice must be served identifying the hearsay and the reason why the witness will not be called

Question 20

What happens if notice of hearsay is not given when it should have been?

Answer 20

Will still be admissible, but
- given less weight and
- costs may be awarded

Question 21

What are the options on receipt of a notice of intention to rely on hearsay evidence?

Answer 21

• Request particulars of hearsay
• Call for cross-examination (14 days)
• Challenge weight
• Attack credibility

Question 22

When can a call for cross-examination be used?

Answer 22

Where a party adduces hearsay evidence, the other party may, with leave of court, call that person as a witness and cross-examine them.

Application to court must be made no later than 14 days after the hearsay notice was served.

Question 23

When must a party give notice that they want to attack the credibility of an absent witness?

Answer 23

Notification of the other party that this is what it wants to do must be made no later than 14 days after the hearsay notice was served.

Question 24

When can the fact that a person has been convicted of an offence in a UK court be admissible

Answer 24

• Providing the offence is relevant to an issue in the proceedings.

Question 25

If a person has been convicted of an offence, does that end the matter?

Answer 25

No, the burden of proof is then on the offender to prove that they did not commit the offence on the balance of probabilities.

Question 26

What happens after expert witness reports have been exchanged?

Answer 26

After notice in directions questionnaire giving:
- cost
- expertise

Then:

• 28 days to ask questions, (but only once). Answers become part of expert report
• If don’t answer, expert report may be said to be unreliable by court
• Set availability for Court
• experts agree areas of dispute.

Question 27

How long do you have to ask questions of experts?

Answer 27

Questions must be served 28 days after report received

Question 28

How many times can an expert be questioned in relation to their report?

Answer 28

Once

Question 29

Where should questions to experts be sent?

Answer 29

To the expert and a copy to the other party

Question 30

Who are expert reports addressed to?

Answer 30

The court

Question 31

For small and fast track claims, when will the court grant permission for an expert to appear at trial?

Answer 31

If it’s in the interests of justice

Question 32

Is a letter of instruction from solicitor to expert privileged?

Answer 32

No but no automatic right to inspection

Question 33

Is an expert report privileged?

Answer 33

• Yes, but waived when submitted
• Draft reports remain privileged

Question 34

Can the time for serving witness statement be extended?

Answer 34

Yes, up to 28 days
For longer, court approval needed provided it does not put hearing at risk

Question 35

What happens where no extension is agreed but witness statements were served late?

Answer 35

An application would be needed for relief from sanctions

Question 36

What must evidence of facts be given by?

Answer 36

Affidavit (as opposed to a witness statement) if required by court

Question 37

What authenticates an affidavit?

Answer 37

A jurat (not a statement of truth)

Question 38

In Small Claims or FastTrack cases, what is the likely number of expert witnesses?

Answer 38

Normally one joint expert

Question 39

Hearsay
are plans, photos and models hearsay

Answer 39

Yes. Notice must be given for their use or else it will not be receiveable at trial.