DR - 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

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

Answer 5

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 6

What happens if a witness statement is served late?

Answer 6

An application for relief from sanctions should be made.

Otherwise witness may not be called to give evidence

Question 7

Can a witness add to their witness statement?

Answer 7

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 8

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

Answer 8

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 9

Are the OPINIONS of witnesses admissible?

Answer 9

No, only statements of fact. Unless:

• perceived facts “she was drunk”
• expert opinion

Question 10

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

Answer 10

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

Question 11

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

Answer 11

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

Question 12

Can a company or partnership be a witness?

Answer 12

No, only individuals

Question 13

When does exchange of witness statements normally take place?

Answer 13

After disclosure and inspection.

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

When can a call for cross-examination be used?

Answer 17

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 18

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

Answer 18

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 19

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

Answer 19

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

Question 20

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

Answer 20

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 21

Can the time for serving witness statement be extended?

Answer 21

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

Question 22

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

Answer 22

An application would be needed for relief from sanctions

Question 23

What must evidence of facts be given by?

Answer 23

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

Question 24

What authenticates an affidavit?

Answer 24

A jurat (not a statement of truth)