DR 12

Question 1

What are the two types of witness evidence?

Answer 1

1. Direct (oral evidence from a witness who perceived the facts)2. Circumstantial (evidence that does not directly establish a fact but that allows the court to decide whether a particular fact existed)

Question 2

What is the general rule for what witness must have done to be able to give evidence at trial?

Answer 2

Signed a previous witness statement setting out their evidenceIt must have been endorsed with a statement of truth and served on the opponent in accordance with the directions order

Question 3

If it was not possible to obtain a witness statement before the exchange date specified in the directions order, is there anything the party can do to use the witness evidence?

Answer 3

Seek court permission to serve a witness summary which identifies the witness and summaries the factual issues the witness will cover

Question 4

What happens if a witness statement is not served, and what is a way around this?

Answer 4

Party cannot call that witness, unless they receive court permission which requires them to show a good reason for the failure

Question 5

What can the other party do if a party decides not to call a witness who has had a witness statement served, and how will the court treat what they do?

Answer 5

Other party can refer to the statement, but the court will treat this as hearsay

Question 6

If a witness is to be compelled to testify, within what time limit before the hearing must the witness summons be served?

Answer 6

7 days

Question 7

What is required in order to call a witness?

Answer 7

• Request the court to issue the summons at least seven days before the hearing (one per witness)* Conduct money for travel and lost time sent along with the summons request. It must be sufficient to cover the cost of the witness getting to and from court and the amount the witness will lose by way of income for attending, up to £67. Additional sums are payable for subsidence or overnight stay

Question 8

If conduct money is not included with the witness summons, what happens?

Answer 8

The summons is not effective

Question 9

What happens if a witness who receives a summons fails to attend?

Answer 9

They will be held in contempt of court

Question 10

What is an affidavit?

Answer 10

It is a witness statement that is sworn, normally before a solicitor, who will endorse it to saythat the maker had sworn before them that the contents were true. It can be used as evidence

Question 11

Although hearsay evidence can be oral or in writing, what are the two requirements for evidence to be hearsay?

Answer 11

1. Statement must have been made out of court2. Statement must be used to prove the truth of what is being stated

Question 12

When will a witness statement not be hearsay?

Answer 12

If the witness comes to court and affirms on the witness stand that it is their statement, it is treated as if it were spoken in court and serves as evidence in chief

Question 13

What six factors will the court consider when determining the weight to apply to a witness statement entered as evidence where the witness does not come to court?

Answer 13

1. Reasonable/practicable to force witness to attend?2. Original statement made contemporaneous with the event?3. Single or multiple hearsay?4. Motive to misrepresent facts?5. Was original statement edited?6. Does the situation suggest attempt to prevent proper evaluation of evidence?

Question 14

What is required of the trial judge in relation to hearsay?

Answer 14

They must indicate the weight they attached to it

Question 15

If a party wishes to rely on hearsay evidence, what must they do?

Answer 15

Witness unable to attend * Court will treat the signed witness statement as hearsay evidence.* The proponent of the hearsay must have served notice on the opponent of their intention to rely on the hearsay in a formal document Witness attends trial* Service of the witness statement itself constitutes notice

Question 16

In response to notice that the other side wish to rely on hearsay evidence, within what time limit must the recipient make an application to the court to call the witness (e.g. to seek to attack their credibility), if they wish to do so?

Answer 16

14 days

Question 17

What must occur for a party to have their own witness declared as hostile by the court?

Answer 17

1. Witness is unfavourable to the side who called them2. Lack of cooperation to tell the truth on behalf of party who called them3. Evidence is entirely inconsistent with their witness statement

Question 18

What is the effect of a witness being declared hostile?

Answer 18

They can be cross-examined by the party who called them

Question 19

Is evidence of a conviction for an offence admissible?

Answer 19

In any civil proceedings, the fact that a person has a conviction for an offence in the UK is admissible to prove, where relevant, that they committed that offence (which may be helpful in a civil road traffic accident case).

Question 20

What is similar fact evidence and what must it be to be admissible?

Answer 20

Evidence of previous incidents or conduct as evidence of similar conduct in the case in question. Must be relevant.Example: Showing that a driver had nine points on their driving record for three separate offences in the past year of failing to comply with a traffic light signal is evidence that they likely disobeyed the signal in question.

Question 21

What is a Notice to Admit Facts, and within what time limit before trial must it be served?

Answer 21

A request on the other side to admit certain facts that are capable of agreement and admission. Must be served 21 days before trial.

Question 22

What happens when a Notice to Admit Facts is served, the facts were not admitted, but were then proved at trial?

Answer 22

The court may order the party who refused to admit to pay the costs associated with proving the facts at trial, irrespective of the outcome of the case

Question 23

What is a Notice to Admit or Produce Documents?

Answer 23

If a party believes a document produced by an opponent is not authentic, the party can serve a notice to prove the document at trial (‘Notice to Prove’).* It must be served by the last day available for witness statement exchange or within 7 days of disclosure of the document, whichever is later. * If the recipient proves the authenticity, the court may make a costs order against the party who served the notice.

Question 24

What is a “Letter of Request”?

Answer 24

It is used when a court in one jurisdiction asks the court in another to take evidence on its behalf, either orally or in writing e.g. international commercial cases

Question 25

What are four types of evidence that is inadmissible?

Answer 25

1. Opinion evidence, except from experts2. Evidence that is privileged or protected by public interest immunity3. Communications that are without prejudice4. Any evidence which is irrelevant

Question 26

Does the court have discretion to disallow evidence which would otherwise be admissible?

Answer 26

Yes

Question 27

What evidence is a lay person allowed to give, even though it may appear to contradict the general rule that only experts can give opinion evidence?

Answer 27

Evidence of facts perceived by them, e.g. their perception of speed in a road traffic accident

Question 28

How many copies of a witness summons must a party give to the court, per witness, if the court is serving the witness?

Answer 28

Two summonses. One for service, and one for the court

Question 29

For a witness summons to be effective, how long before trial must it be served on the witness?

Answer 29

7 days