DR - 5 - Evidence Flashcards
Burden of proof
Lies with C. Each fact must be proved unless it is admitted by the opponent.
Contributory negligence
Burden of proof falls on D.
Exception?
D in civil has been convicted of a relevant criminal offence. Burden of proof is reversed. D argue they should not have been convicted.
Standard of proof
Balance of probabilities
Part 32
Witness-
Must serve witness statement on other parties setting out facts which witness would be allowed to orally rely on.
Inadmissable not included.
If not served only with courts permission which is rare
Written witness Summary
If person unable to attend.
Party applies to court without notice -
Witnesses name and address
Evidence the witness can provide
Matters on which the witness would be questioned at trial.
Formalities of witness summary under CPR 32.
(a) The statement should be headed with the title of the proceedings and details such as the
name of the witness, the number of the statement and the date in the top right hand corner.
(b) In the opening paragraph should be the witness’s address, their occupation or
description, whether the statement is made as part of their employment or business and,
if so, the name of the business and whether they are a party to the proceedings.
(c) The paragraphs must be numbered with all numbers, including dates, being expressed
as figures and not words, thus, ‘five people’ should read ‘5 people’. The format for dates
would be, for example, 16 January 2022 and not 16.01.2022.
(d) The statement should normally follow the chronological sequence of the events.
(e) The function of the witness statement is to set out in writing the evidence that the
individual wants to provide on behalf of the party that called them. Historically, such
evidence was given orally at the trial but now, to save time, the witness statement usually
replaces this.
(f) Consequently, it should be written in the first person and expressed in the witness’s own
words as far as possible.
(g) The witness must also indicate which of the statements are made from their own
knowledge and which are based on information and belief, naming the source if
appropriate. Also, the process by which the witness statement was prepared must be
included, for example, face to face or over the telephone with a party’s solicitor.
(h) Any documents that are attached are formally exhibited, for example, ‘AP1’.
(i) Under PD 32 para 20.2, it must be verified by a statement of truth in the format:
‘I believe that the facts stated in this witness statement are true. I understand that
proceedings for contempt of court may be brought against anyone who makes, or causes
to be made, a false statement in a document verified by a statement of truth without an
honest belief in its truth’.
Unlike statements of case, a witness statement cannot be signed by a legal
representative.
Directions for exchange
Simulatenously.
After disclosure and inspection of documents.
Use at trial
Take oath or affirm.
Cross-examination
Cannot add to it without permission from the court.
Affidavit
- In front of solicitor (not own)
- Mostly used in freezing injunction or search order
Relevance
Irrelevant material is in-admissable.
In dispute
The facts which are not admitted or denied.
Opinion
General rule - Opinion evidence is not admissable.
BUT
s3(2) Civil Evidence Act 1972 - if made as a way of conveying facts personally perceived.
CANNOT
Draw a conclusion
An expert may give their opinion.
Hearsay
S1(2) of the Civil Evidence Act 1995
- a statement made outside court
-which is repeated in court
-to prove the truth of the matter stated.
Can be relevant fact or admissible opinion
Multiple?
Multiple when relayed through more than one person
Procedure?
Notice requirements when relying on hearsay-
-Serve the other party with the statement
-OPP then decides whether to ask court to order the original maker of statement attend for cross-examination or serve notice of intention to attack the credibility of the hearsay evidence.
