🗣️DR: Evidence

Question 1

How may the court control evidence via directions

Answer 1

○ Issues on which it requires evidence (eg liability, causation or quantum)
○ Nature of evidence (eg experts report)
○ No. of witnesses of fact
○ How evidence is placed before court (orally/written statement)

Question 2

What is the standard and burden of proof for evidence

Answer 2

Legal burden of proof (duty to produce sufficient evidence)
With claimant to prove each fact not admitted by opponent
EXCEPT
□ burden reversed where D convicted of relevant criminal offence
□ Certain occasions eg contributory negligence

Standard of proof: On balance of probabilities (more likely than not)

Question 3

What should you do if you want to call a witness?

Answer 3

must serve witness statement on other parties
OR witness cant speak at trial unless court gives perimision (rare)

Question 4

What should a witness statement include?

Answer 4

all facts witness allowed to give orally at trial (not inadmissible/irrelevant fact)

Question 5

What is a witness summary and what will it contain?

Answer 5

Where hard to obtain witness statement, party can apply to the court without notice for an order to serve a written witness summary.
Will contain:
□ witness’s name/address
□ evidence witness can provide, if known
□ OR matters on which the witness would be questioned at trial (ie disputed issues)

Less satisfactory than statement but better than no evidence at all

Question 6

Effect of failure to comply with formalities of witness statement?

Answer 6

Failure to comply could mean court refusing to admit

Question 7

8

Content of a witness statement

Answer 7

1. Title of proceedings, name of witness, no of statement, date
2. Opening para: witnesses address, occupation/description, if statement made as part of employment/business, if so name of business, if they’re a party
3. Paras numbered and in chronological order of events
4. Set out in writing the evidence they wants to provide on behalf of the party that called them
5. In first person/witnesses own words as far as possible (Inc process made/involvement of witness)
6. Indicate which statements made from own knowledge and which based on info and belief, naming source if appropriate
7. Attached docs should be formally exhibited (don’t HAVE to exhibit anything)
8. Verified by statement of truth

Question 8

Who can sign a witness statement?

Answer 8

CANNOT be signed by legal representative

Question 9

Format for numbers/dates in a witness statement

Answer 9

1. All numbers figures (5 not five)
2. Dates 16 January 2024 and not 16.01.2024.

Question 10

Directions for exchange of witness statement

Answer 10

• Will be given once case allocated to track
• Usually exchanged at same time (so one side not advantaged)
• A few weeks after disclosure/inspection of docs (will vary depending on complexity) =witness can review their evidence after taking into acc docs inspected

Question 11

How are witness statements used at trial

Answer 11

1. Judge will read before trial as part of trial bundle
2. Witness usually called to give oral evidence
   □ Go in witness box
   □ Take oath/affirm
   □ Shown copy of statement and confirm contents true
3. Then assumed witness has said, from the witness box, everything in statement and so this stands as their ev-in- chief
4. Unless the court gives permission for additional examination- in- chief, will be cross examined

Question 12

Can a witness add something to their witness statement at trial?

Answer 12

CANNOT add things not in statement without permission
can only if judge is satisfied there is a good reason why the evidence was not dealt with in the statement itself

Question 13

What must witness evidence be to be admissible?

Answer 13

1. Must be relevant (address facts in dispute)
2. Not an opinion

Question 14

When is evidence relevant

Answer 14

addresses facts in dispute

Question 15

Exceptions to opinion evidence being admissible

Answer 15

1. Facts personally perceived
   (eg. Car was driven at about 60mph/person was ‘drunk’)
   -Technically should list facts leading them to conclusion
   -CANNOT draw conclusion from evidence
2. Expert evidence

Question 16

What is an affidavit

Answer 16

Sworn statements of evidence
Maker has to swear/affirm before solicitor (not their own) or other authorised person that contents are true
Only used on a few occasions

Question 17

Hearsay definition

Answer 17

statement made outside court repeated in court to prove the truth of the matter stated

Question 18

Types of hearsay

Answer 18

• Written/oral
• Repeated in court in doc or by witness (in witness statement or oral evidence)
• First hand or multiple

Question 19

Is hearsay admissible in civil proceedings

Answer 19

Yes

Question 20

What must be done before you can use hearsay evidence

Answer 20

If calling wintess whos statement contains hearsay: serve statement on other party, opponent can then ask court to order maker of original statement attends for cross- examination or serve notice of intention to attack the credibility of the hearsay evidence.

If not calling witness, just using statement: whole WS becomes hearsay=MUST serve hearsay notice at same time as WS, saying witness isnt being called and why

Question 21

Failure to comply with hearsay notice requirements

Answer 21

hearsay still admissible but the failure may be taken into account when assessing the weight to be given to it, or when making a costs order at the end of the trial.

Question 22

How much weight should be attached to hearsay evidence?

Answer 22

Second best evidence of a fact
Judge will consider:
1. issue its addressing
2. importance in case?
3. other evidence available on same issue?
4. Is it more probative than any other evidence the party could obtain through reasonable efforts?

Statutory guidelines
When attaching weight, court must also have regard to all circumstances, in particular:
□ Reasonable/practicable to call the person who made statement?
□ When made-at time of event/after?
□ Multiple hearsay danger of mishearing/exaggeration/inaccuracy
□ Motivation- to conceal/misrep matters?
□ Original statement edited/made with someone else (=collusion)?
□ Do the circumstances suggest an attempt to prevent proper evaluation of weight of evidence (eg given late)

Question 23

Can you use an expert witness without permission?

Answer 23

NO

Question 24

When are directions for experts given?

Answer 24

On allocation
OR at CMC

Question 25

What will the court consider when deciding what expert evidence can be admitted

Answer 25

Court must be satisfied its necessary, considering: □ **Value** of claim □ **Proportionality** (cost v complexity) □ Likely **costs** Judge will also need info on - name of the expert where practicable; -field they're an expert -their knowledge and experience to ensure they are suitable -issues they’ll address.

Question 26

# 4 What is an experts duty and who is it owed to?

Answer 26

1.To assist court by providing objective, unbiased opinions on matters within their own expertise 2. To NOT assume the role of an advocate 3. Overriding duty is to court 4. But still owe instructing party implied term to exercise reasonable care and skill)

Question 27

What will the court consider when deciding if a single joint expert (SJE) is appropriate?

Answer 27

□ Proportionate to have separate □ SJE will assist in resolving fast and cost effectively □ there's likely to be a range of expert opinion Fast track: will be app unless good reason not to

Question 28

Procedure for SJE

Answer 28

* If parties cant agree, court will select from list prepared by parties * Will send report to both parties simultaneously * Costs shared * At trial: expert evidence by written report only

Question 29

# 3 What will the court consider when deciding if appointment of separate experts is appropriate?

Answer 29

□ amount in dispute □ Importance to parties □ Complexity of issues

Question 30

Procedure for separate experts

Answer 30

Court will narrow down issues experts need to comment on (to streamline trial) Will inc: 1. Exchange -deadline 2. Questions -each party within 28d can submit and answers will form part of report 3. Discussion-may be ordered between exerts to narrow down issues and identify: -Extent of agreement -Points of/reasons for/actions to resolve disagreement -Further material issued not yet raised and extent to which these are agreed (without prejudice rule-contents not repeated in court unless parties agree but lawyers may attend to address points of law NOT to participate) 4. Joint written statement-following discussion, signed and stating issued on which they agree/disagree and reasons (Copies given to parties) 5. If oral evidence needed at trial (presumption to rely on written reports but common on multitrack to give evidence)

Question 31

Form of an expert report

Answer 31

Must be/inc: 1. Addressed to court 2. Expert’s qualifications 3. Literature/ other material relied on 4. Statement setting out all facts and instructions 5. Who carried out any examinations, measurements, tests or experiments, their qualifications and whether the expert supervised; 6. If range of opinion, summarise and give reasons for the expert’s own opinion; 7. Summary of the conclusions reached 8. Statement that the expert understands their duty to the court and has complied with this, and is aware of the requirements of Part 35 and related guidance. 9. Verified by a statement of truth

Question 32

# Experts Professional conduct issues

Answer 32

When drafting, expert must set out all instructions (written or oral) that are material to the opinions expressed or upon which their opinions are based =legal representatives be aware instructions not privileged and could be scrutinised should the court find reasonable grounds to consider the statement of instructions to be inaccurate or incomplete.

Question 33

What happens if written questions are put to an expert who does not answer?

Answer 33

Court may order that: 1. Party instructing expert cant rely on the evidence of that expert 2. Fees of that expert are not recoverable

Question 34

Deadline for expert to reply to written questions?

Answer 34

within 28 days of service of the report

Question 35

What form must expert evidence be in to be admissible?

Answer 35

Report that complies with Part 35

Question 36

When do the rules of service of witness statements not apply and what can the judges do in these circumstances?

Answer 36

Small claims Judge can still restrict evidence to ensure parties on =footing/case dealt with fairly