DR2 Flashcards
Civil cases - who does burden of proof lie with and any exceptions?
Claimant
Exceptions
- defendant also convicted of criminal offence (related to the civil case)
and arguing they were wrongly convicted
(D must prove on balance probs) - con neg - D must prove
- mitigation of loss - D must prove
Standard of proof in civil cases?
Balance of probabilities
(i.e. more than 50% chance)
General rule on how evidence must be proved at trial in civil cases?
Theory vs practice?
By oral evidence
In practice a lot of the evidence is in writing
What does CPR require of a party wishing to call a witness?
Serve witness statement on other parties setting out facts witness would be allowed (ie admissible and relevant) to give orally at trial
What happens if witness statement not served on other parties? (civil trial)
Witness only allowed to speak with court’s permission, which court would rarely give
What can you do if a witness statement cannot be obtained from witnesses seeking to rely on?
Conditions/requirements?
(other than summons)
How to apply?
Apply to court WITHOUT NOTICE for order to serve a witness SUMMARY, containing:
- W’s name and address
- Evidence the witness can provide (if known);
or if not known
- Matters on which witness would be questionned at trial
Think ignore the below:
evidence = have docs etc. questionned = have knowledge
If granted, can compel to attend trial by serving witness summons
(e.g. abroad / doesn’t want to give)
Form and content of a witness statement in civil law?
imp
- Title of proceedings, statement number, date and name of witness
- Address, occupation, whether witness on behalf of employer or own business, and if so name of the business and whether they are a party to proceedings
- Paragraphs should be numbered and all numbers in numbers not words (e.g. 5 people instead of five people),
EXCEPT dates (16 January instead of 16 01) - Chronological
- Set out evidence want to provide
- Should be in first-person/own words as far as possible
- Indicate what evidence is from own knowledge and which is based on information and belief, naming source if appropriate
- How they came to make the witness statement (e.g. face to face with solicitor)
- not just made it with solicitor, but HOW - Formally exhibit any attachments
- Statement of truth (signed by witness)
Can witness statement’s statement of truth be signed by a legal representative?
(civil cases)
No
E.g. of what statement looks like:
“‘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’.”
What happens if witness statement cannot be provided in English?
(civil cases)
Draft in own language, with translation (and date of translation) included within the statement
When are witness statements usually delivered?
Simultaneously
A few weeks after disclosure
What will witness do at civil trial before giving evidence?
- stand in witness box
- take the oath or affirm
- be shown a copy of their statement
- confirm contents are true
How does examination of witness in civil trial work?
Witness gives evidence
- if witness statements exchanged in accordance with court directions, evidence itself IS the examination-in-chief
So it is v important that their statement is comprehensive!
Court may permit additional examination in chief
Cross-examination
Sometimes re-examination
Can a witness give evidence that is not in their witness statement at civil trial?
General rule no
Unless court permits
- rare and only if good satisfied that good reason why evidence not dealt with in statement itself
(eg new relevant matter arose after statement served)
What are affidavits?
Are they the same as witness statements?
When are they used?
Sworn statements of evidence
Not same as witness statements.
Swear or affirm before solicitor (not their own) or other authorised person
Applications for freezing injunction or search order
When is evidence relevant (and therefore admissible)?
(CPR)
Evidence inadmissible if irrelevant
Relevant if:
- addresses facts which are in dispute; or
- have to be proved by party calling witness
Is opinion evidence admissible at civil trial?
General rule - no
e.g. couldn’t admit “I imagine it is faulty but not seen it” (speculation so not perceived and no expert)
Exceptions:
- facts PERSONALLY PERCEIVED
- ok if only give opinion to bring together relevant facts personally perceived by them
- should really just list the facts which led them to reach conclusion
- must not draw conclusion from their evidence as this is role of court
e.g.:
- could give evi that was “driving around 60 mph” or was “drunk”
(but better to say “was stumbling and appeared drunk”)
- couldn’t say “too fast”
- e.g. could not say heard someone say the D was “stupid” conclusion drawn but from what we cannot say - not based on a perception. -
Expert evidence
- permitted to express opinions on matters qualified in
What is hearsay evidence (civil)?
- a statement made outside court;
- which is repeated in court;
- to prove the truth of the matter stated.
And:
- must be relevant fact or admissible opinion
- oral or written
- main thing is whether reason asking trial judge to rely on the evidence is to reach a decision in the case
e.g.:
- trying to include evidence that the other driver said “I’m sorry, I just didn’t see you”
- trying to adduce evidence that holiday maker told would be “quiet and peaceful”, not hearsay because not repeating to show truth of statements - adducing to show she was lied to.
Criminal vs civil hearsay
Criminal = statement (fact or opinion) not made in oral evi relied on as evi matter within it
Civil = out-of-court statement repeated in court to prove truth of matter stated
First-hand vs multiple hearsay useful example (just for understanding not to revise)
First-hand: Mary keeps a diary and record what she sees one day.
Her diary is used at trial to prove truth.
Multiple hearsay: Mary records what she was told by Lucy. Her diary is used at trial to prove truth of what Lucy said.
Is hearsay evidence admissible in civil proceedings? Any requirements of party relying on it?
Admissible
As long as serve witness statement (which contains the hearsay) on the other party
What may opponent do if been told hearsay evi being relied on (civil)?
- ask court to order maker of original statement attends for cross-examination; and/or
- serve notice of intention to attack the credibility of the hearsay evidence
(ie if witness does not attend, will attack credibility of statement)
Is it hearsay if a witness isn’t attending trial?
What must be done here by party using that witness’ evidence?
Yes - if not attending and just adducing their written statement, that is hearsay evidence.
Serve ‘hearsay notice’ at same time serve WS
- where inform W not being called oral evi and why.
Other side can still then apply to court for order that attend or serve notice of intention to attack credibility
Think can ignore this
Unless hearsay statement is within exchanged WS and will be calling witness, do not needs a separate hearsay notice (implied).
If party does not comply with hearsay notice requirements, is the statement still admissible?
Any other implications?
(civil)
Yes
But the failure may be taken into account in costs order or when considering how much weight to give to statement itself
How much weight will be attached to hearsay statements compared to other forms of evidence and why?
Less weight because out-of-court statements not made on oath and more times repeated, more room for error.
Because maker not present, can’t be cross-examined too.
What must court consider in assessing weight to attach to hearsay evidence in civil trials?
First will consider:
1. What issue does hearsay address?
2. How imp is that issue in case?
3. Any other evidence address that issue?
4. Is the evidence more probative than any other evidence could reasonably obtain?
Also statutory guidelines are to consider all circumstances, including:
1. How reasonable and practicable would have been to secure the witness’ attendance?
2. How long after the relevant event was it?
(sooner = more reliable)
3. Less reliable if multiple hearsay
4. Made in collaboration with another/edited?
5. Motive to conceal or misrepresent - e.g. to impress employer?
6. Did they attempt to prevent proper evaluation
e.g. late notice of intention to use the hearsay - so other party had little opportunity to consider
How may court restrict use of expert evidence in civil case?
- limiting number of experts or the number of issues can use expert evi for
- not allowing use of any experts
- making parties agree on experts
- limiting to written reports
What will court consider in deciding whether to permit use of expert evidence and what evidence will they need to do so? (civil)
is it necessary to help decide an issue in dispute?
Consider
- value of claim 💸
- proportionality ∺
- likely costs of using expert 🤑
Need:
- name of expert if poss
- field person is expert in 🌾
- expert’s knowledge and experience 🔬
- issues expert will address
(think of it as a CV being tailored to the trial/what will address)
e.g. my name is luk. field building surveying. RICS 4 years. issues = whether local reservoir could be XYZ.
Duties of expert witnesses, inc who duty is to?
(inc duty of something they are NOT supposed to do)
- duty to court to provide objective and unbiased opinions on matters got expertise in
- duty is not to assume role of advocate
overriding duty to court but still have duty under SOGA to take reasonable care and skill
What will court consider in determining whether should have a single joint expert? (civil)
- proportionate to have separate experts for each party on a particular issue
- SJE likely to make quicker and cheaper to resolve
- likely to be a range in expert opinion?
- consider quantum, liability and causation
- e.g. quantum often appropriate for SJE
- but if quantum is the main issue in dispute, may need separate
who chooses single joint expert?
if parties can’t agree, court based on list prepared by parties
(remember that reg book? well that isn’t actually that helpful here because the parties create the list anyway so not sure why I’ve added that)
Standard order for expert evidence in fast track?
SJE
Cost shared (as always case for SJE)
And evidence normally given via written reports - expert not permitted to give oral evidence
Standard instruction of experts in multi-track? What will be considered in deciding what court should order in terms of SJE or separate?
Separate instruction of experts
Consider amount in dispute, importance to parties and complexity of the issue
(if disproportionate cost - SJE)
What does court do if separate experts are ordered?
(civil)
How long each party got to put Qs?
Additional directions - may give:
- Deadline for EXCHANGE
- Allows parties 28 days to put written QUESTIONS to expert re clarification of their report
- may order WP DISCUSSION between experts in absence parties so can identify things like extent of agreement/disagreement
- Order experts to prepare WRITTEN JOINT STATEMENT (following discussion) stating what agree/disagree on/why - sent to parties
- Whether they should give ORAL evidence
(nb WP discretionary power of court and tbh I imagine most of these are)
Formalities for expert’s written report? (civil)
i.e. what should contain and look like
(part 35)
- Addressed to court
- Qualifications
- Materials relied on
- Facts and instructions
- WHO conducted any studies etc - their qualifications and if supervised?
- Summarise any range of opinions and reasons for own
- Summarise conclusions
- Statement that understand their duty to court, complied with this and aware of requirements of Part 35 and related guidance
- Statement of truth
Statement of truth for expert report civil
(Drafting)
I confirm that I have made clear which facts and matters referred to in this report are within my knowledge and which are not. Those that are within my knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
Effect of expert failing to comply with rule 35/CPR rules?
If serious, party can’t rely
But usually court just considers breach in assessing how much weight to attach to the evidence.
Trial judge may report expert to their governing body at end hearing depending on seriousness of breach
(although if they tell porkies they will be done for contempt of court - same for anyone who does statement of truth!)
professional conduct requirements for an expert in civil trial?
dothey need to say instructions?
set out all instructions been given so can tell their opinions aren’t prejudiced
e.g. surveyor instructed to value on a quick sale would value differently than at general valuation
so solicitors should be aware that instructions aren’t privileged
what will court order for expert in fast track?
single joint expert
in form of written report
apply to court if can’t decide on fee arrangements / who to pick
oral expert evi in exceptional circumstances / court satisfied IoJ
either party can ask expert Qs
expert evi small claims usual order
TYPICAL DIRECTIONS
= parties not being allowed to rely on an expert’s report without express permission from the court.
Not allowed oral evi unless IoJ necessary
what must you do if asked expert Qs
send copies of qs and replies to court and other party
can expert witness be employed by party relying on them?
yes
(although court will, as always, need to be satisfied that expert is sufficiently aware of their responsibilities to the court esp re unbiased/objective opinions)
are complaints about defendant relevant / admissible?
e.g. surveyor and client complaints about similar issue?
complaints received in 6 months before survey?
referring to the construction method then being described as defective
can expert be instructed on a conditional or contingency fee basis (civil cases)?
No -
if they are contingent on nature of expert evi or outcome of cases should not be offered /accepted
interferes expert’s overriding duty to court and independence
any exception to usual formalities on what an expert report should look like in civil case?
In professional negligence claim - D is allowed to give their own expert opinion on what they did or did not do that is said to amount to negligence
No need to be in a Part 35 format - D’s witness statement will suffice.
3 types of evidence in civil trial?
- Documentary
(standard disclosure - which means list not show- and inspection)
(only inspect if not privileged) - Witness
- Expert
would witness be allowed to say “the car failed to stop because the driver was speeding”
no
speeding is tipping over the edge - could probs say was going over the speed limit - but is drawing conclusions from this
what happens if witness does not complete statement of truth? can they give evidence at trial?
court has discretion and MAY (!) allow witness to give evi at trial
Will witness giving oral evidence be allowed to amplify witness statement and/or give evidence relating to new matters which have arose since WS served?
(Civil)
only if there is good reason
e.g. if quantum in dispute/loss of future earnings and started a new job few days before trial then would be permitted
How should you inform court of witness’ availability?
(civil)
- Directions questionnaire
- Pre-trial checklists
If not sure whether witness will attend voluntarily, what should you do?
(explain what it is)
advantage
(civil)
Seek witness summons.
This requires to attend court to give evi and/or produce docs to court.
:) judge more sympathetic to adjournment if W does not attend
When should witness summons be ISSUED?
(and what if not done in this timeframe)
(civil)
7 letters in W!
At least 7 days before they are due to attend court
Otherwise, court permission required
(nb it is still issued by court if have done within the required timeframe)
What happens if witness doesn’t attend court despite summons being served? (civil)
County Court - fine
High Court - may be imprisoned for contempt of court
may also be liable for wasted costs arising from non-compliance
When is court permission required for a witness summons?
What does this mean you must do in practice?
Permission needed if
serving less than 7 days before witness due to give evidence
Not sure where below has come from:
*Want W to give evi in court or produce document either:
a) on a date other than fixed trial date; or
b) at a hearing other than the trial
- probably best without notice because quicker*
Who serves witness summons?
Practical implication of this on the party who applied for the summons?
usually the court
- unless party requests that they serve themselves
Either way:
party must deposit money to be paid / offered to witness at court office
(nb court issues)
Requirement for witness summon to be valid (aside from time limits):
Witness offered or paid
- A sum covering expenses in getting to and from court 💰
- Compensation for lost time from attending court 🕐
eg lost earnings
Would you often issue witness summons for an expert?
No - you can do - but expert witnesses are under a duty to keep those instructing them informed of their availability
What tracks require pre-trial checklist?
Fast, intermediate and multi-track
deadline for pre-trial checklists?
filed at court no later than 8 weeks before trial
(8 letters pretrial)
Purpose of pre-trial checklists (ie listing questionnaires) for judges and what judge may find after reviewing?
- check complied with directions and trial ready to proceed
- consider if further directions required
- decide whether review hearing needed
i.e. listing hearing in fast track / pre-trial review multi-track - confirm estimated trial length
- set timetable for trial
Consequences of failure to comply with pre-trial checklist?
A) neither party complies
B) only one part complies
If NEITHER party complies,
- if don’t file completed one in 7 days, strike out
If ONE party complies:
- fix hearing to ensure ready for trial
(asumming pre-trial)
For what cases may a judge order a pre-trial review?
Trial likely to last longer than 10 days
So can personally check progress
What will court do once it has reviewed pre-trial questionnaires?
- time estimate and timetable for trial if necessary;
- fix place of trial; and
- confirm date of trial or week will begin
Max length of bundle?
Good practice - 250 pages
Who usually prepares trial bundle?
Claimant
When must trial bundle be filed?
Max 7 but not less than 3 days before start of trial
When is case summary requires and who prepares?
Multi-track cases
Cl responsible preparing but should be agreed by BOTH parties if poss
What should case summary include?
(aka skeleton argument)
- disputed issues / what Qs judge needs to answer about them
- what party says about each issue and what evi will rely on
- any relevant law
- Key docs judge should read
(Evie u must watch fb)
(key issues, key law, key docs, key evi)
Civil trial etiquette:
When should advocates stand?
How should witnesses be addressed?
Can you 🍟🍔
remain seated for hearings in chambers or before district judges, should stand when speaking in open court.
title and surname eg Mrs Jones
children by first name
no food
how should u address judges in civil court
annoying but need to know
County Court
- Circuit Judge = Your Honour
(circuit TV you would hear your honour)
- District Judge = Judge
(Amanda)
High Court
- Judge - my lord/lady
- District judge = Judge
CoA
- Lord Justice = my lord/lady
sup ct
- Supreme Court Justice
- my lord / lady
non-leading or leading Qs in civil trial?
(consider the diff stages of evi being given)
C for cross-examination. C for closed.
Open = non-leading
i.e. what where who why when how
(e.g. where were u on XYZ)
Closed = leading
i.e. yes or no
(e.g. u saw her steal the beans, didn’t you?)
exam-in-chief: open only
cross: closed or open - but pretty much always just closed
re-examination (if permitted): open only
same as criminal
(means open Qs more rare in civil trials than criminal bcos witnesses’ own evi is usually examination in chief)
what courts do fast and multi-track cases take place in?
County Court (surprised me a little)
High Court can too - main one in London but have district registries in many cities
(so any courts really i think! just that u can elect to have it in high court if over certain amount i think)
Usual order of events at a trial?
- opening speech by claimant’s advocate
(think Claimant begins with C, like Criminal)
- usually use case summary - claimant’s case
- defence’s case
during cl and D’s case:
- witness evi (witnesses of fact first and then expert evi)
- any examination-in chief
- cross-ex (always)
- any re-ex
- closing speeches by both
- judgment
Will additional examination by their own legal rep be allowed for witnesses in civil court?
What can they ask / not ask?
Court permission required?
When may u need this?
Permission judge needs to be obtained
Cannot ask about matter in dispute between parties
Would request if, e.g.
- new matters arose
- respond to it
- clarify / give context something
e.g. expert evidence covered something which not covered in WS
can only add open (ie non-leading) qs
who gives witness evi first in civil trial claimant or D?
ever varied?
claimant
but court can make alt orders re witness evi
- eg parties experts give evi simultaneously on issue by issue basis
who does closing speech first in civil trial?
Defence
Followed by Cl
(summarise law and facts in best light for their client)
when will judgment
A) be made
B) take effect
in civil trial?
A) usually at trial but sometimes delayed if case is complex
B) day made unless judge specifies otherwise
Order of judgment in civil trial?
- Determine liability
(has Cl proved case) - Review evidence and provide reasons for decision
- If D won - end of it.
- If C won - remedies
- Usually pay sum (quantum)
- Unspecified: consider each category of damages in turn and interest -
Costs
- decide if GR (unsuccessful party pays) applies
- fast/intermediate track = fixed
= no costs assessment required - select complexity band and read down to stage at which case ends.
- multi-track
(a) decides who pays
(b) amount decided at later hearing unless parties agree
what is quantum?
amount of monetary damages awarded to a successful party in a claim.
How long does a losing party in civil case have to pay costs order?
14 days
Unless order specifies otherwise
Difference between hostile and unfavourable witness and how to deal w them?
(civil)
Unfavourable = unhelpful to case but for proper reasons
eg forgot what happened
-just have to accept that risk exists when calling witnesses
Hostile = suddenly unwilling to support party who called them
- eg deviating from witness statement
eg refuse to answer
Overcome hostile witnesses:
- ask court to declare them as hostile witness
- can then cross-examine them as if were for other side
- can also attack their credibility
(but not their character/prev convictions)
Grounds for granting permission to appeal
Court considers:
1. appeal has REAL prospect for success
OR (!!!!!!!!!!!)
- some other compelling reason
(realistic not fanciful)
eg imp Q of policy which higher court should consider
; AND
(CoA or SC) imp point of principle or practice
Who grants permission for first appeal and when?
(trial judge or appeal court)
usually ask trial judge - end of trial
If not granted or never asked - can apply appeal court
How will appeal court deal with request for an appeal?
i.e. u have requested to them that they accept your appeal
What about CoA?
Usually on paper i.e. no hearing
But if CoA - list for oral no later 14 days after relevant direction IF don’t think can deal with without parties
When will second appeals be granted and who by?
CoA would need to grant permission itself
(first 2 same grounds as for first appeals):
AND
3. Raises imp point of principle or practice
Is there a right to appeal?
No
weird terminology but means there is no automatic right to appeal and is a procedure for obtaining
Procedure for appeal under CPR?
(got in other cards)
Process for obtaining permission:
- request from trial judge at end of trial - judge decides whether to grant
(vision of someone waiving around appeal request at end of trial) - if above unsuccessful or never tried,
apply from appeal court itself
- court usually considers on paper
- but if appealing to CoA and CoA considers can’t determine fairly w/o parties presence, must list for oral hearing within 14 days
