DR5 - Evidence

Question 1

What directions can the court give to control the evidence given by the parties?

Answer 1

1) The issues on which requires evidence, whether liability, causation or quantum
2) The nature of the evidence it requires to decide those issues - e.g. an experts report
3) The number of witnesses of fact a party may call at trial
4) The way in which the evidence is to be placed before court - whether orally or by relying upon written statements

Note. When exercising its powers, the court will bear in mind the overriding objective in CPR r.1.1 to decide matters justly and at proportionate expense. This will involve the court being actively involved throughout the proceedings, up to and including the trial. Even at this late stage, the judge could for example decide that the issue which had been raised is no longer important and order that any evidence relating to it should be excluded.

Question 2

Who has the legal burden of proof?

Answer 2

• The legal burden of proof lies with the claimant.
• Each fact must be proved unless it is admitted by the opponent.

E.g. a claimant alleging breach of contract, must prove that a contract existed between the parties the defendant broke the relevant express or implied terms of the contract, and that the claimant suffered a loss as a result

Question 3

What does ‘burden of proof mean’?

Answer 3

This refers to the obligation that the party making an allegation (generally the claimant) provides sufficient evidence to the court to prove the relevant legal critera and factual allegations to their cause of action.

Question 4

What is the standard of proof in civil matters?

Answer 4

• On the balance of probabilities
• Judge to be persuaded that the claimant’s version of events is more than likely to be true than the defendant’s
• Certainty must be greater than 50%.

Question 5

When does the standard of proof switch to the defendant?

i.e. exception to the general rule that it is the claimant who has the legal burden

Answer 5

1) Defendant has been convicted of a relevant criminal offence. Under s11 Civil Evidence Act 1968 - burden of proof is shifted to the defendant and a higher standard of proof. E.g. careless driving.
2) Contributory negligence- defendant must prove that the claimant’s failure to take care contributed to the damage suffered - e.g. in a car accident the claimant wasn’t wearing a seat belt and partly responsible for the injuries.

Question 6

What is general principle regarding evidence in civil proceedings?

Answer 6

• If a piece of evidence is relevant to the proceedings, it is admissible

Admissible evidence - evidence that a party is allowed to present to the court and which the court is allowed to consider. It cannot be objected to on the basis that it is irrelevant or immaterial or that it violates the rules relating to an exception such as hearsay.

Question 7

What is the exception to the general rule that evidence is admissible?

Answer 7

1) Opinion evidence i.e. the evidence is of opinion of a particular witness as opposed to a direct account of the facts
2) Hearsay evidence - specific type of evidence where the person giving evidence tells the court about a statement which was originally made by someone else

Question 8

What is the general rule regarding witness statements?

Part 32 CPR

Answer 8

• Must be proved at trial by oral evidence
• Modified in practice as much of the evidence in a civil litigation case is dealt with in writing
• Under Part 32 - if a party wishes to call a witness, they must
  1) Serve a witness statement on the other parties
  2) set out all the facts which that witness would be allowed to give orally at trial
  3) Inadmissible or irrelevant material should not be included
  4) If the statement is not served for any reason - the witness will only be allowed to speak at trial with the court’s permission and this would be a rare occurance.

Question 9

How many pages should a permitted witness statement be in the intermediate track?

Answer 9

Should not exceed 30 pages.

Question 10

When can a witness apply to the court without notice for an order to serve a written witness summary?

Answer 10

1) Difficult to obtain a witness statement - e.g. person is uncontactable, abroad, difficult to persuade a witness to give a statement (e.g. against their current employer and fear being dismissed)

In such circumstances, the party can apply to the court without notice for an order to serve a written summary containing:
1) Witness name and address
2) The evidence the witness can provide, if it is known or if not
3) The matters on which the witness would be questioned at trial, namely the relevant disputed issues

Note. witness summaries are less satisfactory to the party than a statement but they may be useful where the alternative is no evidence at all.

Question 11

Where are the rules relating to the form of witness statement found?

Answer 11

Practice direction attached to the CPR 32.

• Lists formalities required for the statement to be valid
• Important that these are complied with as failure to do so may result in the court to refuse to admit a witness statement as evidence.

Question 12

What should the witness statement under Practice Direction 32 contain?

Answer 12

1) Statement should be headed with title of proceedings, witness name, number of the statement, date
2) Opening paragraph - witness address, occupation, description, whether statement is mde as part of their employer, business and name of business if party to proceeding
3) Paragraphs - should be numbered with all numbers, including dates, figures not words e.g. five people not 5 people
4) Statement should be in chronological order of events
5) Written as first person - in witness own words as far as possible
6) Witness must incidcate statement made on their own knowledge / belief OR name source if appropriate (i.e. the process by which it was made)
7) Documents attached are formaly exhibited e.g. AP1
8) Must be verified by a statement of truth

Question 13

Under PD 32 para 20.2 how is a statement of truth expressed?

Witness statements

Answer 13

‘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.

Question 14

What is the difference between a statement of case and witness statement in terms of who can sign it?

Answer 14

• Statements of case = can be signed by legal representative if they have authority.
• Witness statement cannot be signed by a legal representative.

Question 15

What are the special provisions that apply where the statement cannot be given in English?

Answer 15

• Statement can be drafted in the witness’s own language with the date and the details of the translation being included in the statement.

Question 16

What are the courts directions for exchange of witness statements between parties?

Answer 16

• When a case has been allocated to a track, the court will give directs as to when and how witness statements are to be exchanged.
• Usually completed simulatenously - prevent one party for having an advantage over the other by seeing their opponent’s witness statement first
• In most cases, the statements will be exchangeed a few weeks after disclosure and inspection of the documents, although the interval will depend on the complexity of the matter
• Allows the witness an opportunity to review their evidence after having taken into account any documents that have been inspected

Question 17

How are witness statements used at trial?

Answer 17

• Having served a witness statement on the other side, the witness will usually be called to give oral evidence at trial
• Before the hearing - judge reads the witness statements that were exchanged (as part of the trial bundle)
• Witness will go into the witness box, take the oath or affirm, be shown a copy of their statement and confirm the contents are true.
• It is assumed that the witness has said, from the witness box, everything in their statement and so this stands as evidence (or examination in chief)
• Unless the court gives permission for additional examination in chief - they will be subject to questioning by the other sides’ lawyer - ‘cross examination’.

Question 18

What is cross-examination?

Answer 18

Cross-examination is a questioning of a witness by the opposing party in a court of law. The purpose of cross-examination is to test the witness’s credibility and the reliability of their evidence.

Question 19

Why is it essential for a witness statement to be comprehensive?

Answer 19

• Because a witness cannot add to it at the trial unless the court gives permission, and this will be the exception rather than the rule.
• This will only occur if the judge is satisfied there is good reason why the evidence was not dealt with in the statement itself - e.g. because it needs to be amplified or a new relevant matter arose after the statement was served.

Question 20

What is an affadavit?

Answer 20

• Sworn statements of evidence
• They differ from witness statements as the statement maker needs to swear or affirm before a solicitor (not their own) or other authorised person that the contents of the affidavit are true

Prior to CPR - affadivts were the usual means of submitting evidence but they have been now replaced by witness statements.

Question 21

When are affadavits usually used?

Answer 21

1) Application for a freezing injunction
2) Search order

Question 22

What does it mean by ‘evidence included must be relevant’?

Answer 22

• Relevance is judged by reference to the issues the court is called upon to decide
• Evidence from a witness of fact is admissible when it addresses relevant facts - e.g. those in dispute and which have to be proved by the party calling the witness. These should be apparent from comparing the particulars of claim with the defence - the facts not admitted and denied are in dispute.

Dawn issues proceedings for negligence against her solicitor, Razwana, arguing that
Razwana did not represent her properly in her employment claim against a former
employer. In her defence, Razwana admits that, as a lawyer, she owes a duty of care
to Dawn as her client and so no evidence is required on this issue. However, she
denies being in breach of the duty. She submits that Dawn did not provide her with full
instructions of what happened during the incident leading up to her dismissal from her
employment. Razwana calls Erin, a paralegal who sat in on the meeting, as a witness on
her behalf. Erin may give evidence on what was said at the discussion as this is relevant
to the disputed question of liability (namely who is at fault).

Question 23

What is the rule regarding opinion?

Answer 23

General rule = opinion evidence is not admissible because the function of a witness is to give oral evidence of relevant facts from which the court can draw its own conclusions.

NOT their personal opinion.

Question 24

When are the exceptions on admissibility of opinion evidence?

Answer 24

1) Evidence based on facts that are personally perceived by the witness
2) Expert opinion evidence

Question 25

Why are facts personally perceived an exception to the general rule regarding opinion not being admissible?

Think someones POV, perception - it is still an opinion but not really

Answer 25

• These are opinions, but only to the point that they give the witness’s perception of the facts
• The witness should list the facts they saw which led them to reach their conclusion
• E.g. road traffic collision case, the witness may provide the court with their perception that, based on the events they witnesses first-hand the defendant was travelling ‘at about 50mph’. - it is an opinion but one that directly relates to one of the material facts of the case - so would be admissible

NOT admissible
* Defendant was ‘travelling too fast for the conditions’ - what is meant by too fast? It is for the trial judge alone to determine if the defendant was driving negligently.

Question 26

Why is expert opinion evidence an exception to the general rule that opinions are not admissible?

Answer 26

• Expert opinions are permitted if they are qualified to give an opinion
• Must be within their qualified area of expertise
• E.g. medical expert who specialises in orthopaedics will be entitlted to give their opinion on the legnth of time that a bone fracture will take to heal.

Question 27

During the court of proceedings against Lewis, James is asked to provide a witness statement recounting his version of events.

When describing Lewis’s state of intoxication on the night of the incidents, James states that ‘he was too drunk to ride his bike’ is this admissible?

Answer 27

No. This will be regarded as James giving an opinion as opposed to a perception on the facts.

If James had said that Lewis had consumed 6 pints of beer, was slurring his speech and appeared drunk, this would be admissible as he is offering his perception of Lewis’ behavipur based on the facts he witnessed: that Lewis had consumed 6 pints of beer and was slurring.

‘Too drunk to ride a bike’ is imposing James’ opinion on the conclusion that the court needs to reach, which means the opinion is inadmissible.

Basically they can’t provide a conclusion or their opinion. Mere perception of fact, e.g. it was cold outside, he drank 6 beers and was slurring. As opposed to ‘it was too cold to even think about driving that day’ or ‘he was too drunk to ride his bike’.

Question 28

What is Hearsay evidence?

Answer 28

• A statement made outside of the court
• which is repeated in court
• to prove the truth of the matter stated

Question 29

What questions need to be considered as to whether hearsay evidence is admissible by the court?

Answer 29

1) Does the evidence in question fall under the definition of hearsay?
2) Is the hearsay evidence admissible according to the test?
3) Have the procedural requirements to use hearsay evidence been complied with?
4) What weight is the court likely to attach to hearsay evidence?

Question 30

What is meant by does the evidence in question fall under the definition of hearsay mean?

When considering whether hearsay is admissible.

Answer 30

• The statement itself (not the person making it) must be related to a relevant fact or be an admissible opinion
• Can be oral or written and may be repeated in court in a document or by the witness whether in their witness statement or in oral evidence.

E.g. ‘Joshua said at the scene that the car was travelling at approx 50 mph’
* The statement is made outside of the court (Yes. At the scene)
* Repeated by somebody in court (Yes, the witness)
* To prove the truth of the matter stated (that the car was travelling at 50 mph)

The statement satisfies all 3 elements and is therefore hearsay.

Question 31

What are examples that are not hearsay?

Answer 31

Deiza booked a holiday with Fancy Tours LTD, the agent assured her that the hotel would be quiet and peaceful and close to the beach.

However, the hotel was next to a noisy building site and some distance away from the beach. Deiza is now suing for misrepresentation and wishes to repeat in evidence the oral statements made to her by her agent. This will be relevant evidence on the issue of liability but it willl not be hearsay as Deiza is not repeating them to show the truth of the statement - in fact the opposite - that she was lied to. This will assist her in proving that she relied on false representations.

Question 32

What is the test that confirms that Hearsay is admissible?

Answer 32

Under s1 Civil Evidence Act, hearsay will be admissible when
* Relates to a relevant fact
* Is not repeition of an opinion that is not a perception of the facts
* Rather the repetition of the words (evidence) to reach a decision.

Question 33

What is meant by ‘Have the procedural requirements to use hearsay evidence been complied with’?

Answer 33

1. If a party wishes to rely on hearsay evidence,they must give notice to the other parties to the claim that they wish to rely on evidence of a hearsay nature.
2. The notice requirements are dependent on whether or not the party is intending to call the witness to court to give oral evidence.

If the party is intending to call the witness to court to give evidence
* The witness statement contaning the hearsay evidence must be served on the other party

If the party is not intending to call the witness to court to give oral evidence
* the whole of that witness’s statement becomes hearsay
* the party wishing to rely on the evidence must serve a separate formal notice with the witness statement identifying the hearsay evidence, confirming that they wish to rely on it at trial and giving reasons why the witness will not be called
* the party who has been served with the notice can then ask the court to order that the witness be called to court to be cross-examined on their evidence or serve a notice to attack credibility within 14 days of being served with the hearsay notice

If notice is not served, then this will not make the evidence inadmissible, but it may effect the weighting that the court attaches to it at the final trial.

Question 34

When should the notice to attack credibility be served by the other side?

Answer 34

Within 14 days of being served with the hearsay notice.

Question 35

What weight is the court likely to attach to the hearsay evidence?

These are statutory safeguards found in s4 Civil Evidence Act 1995. These provides guidelines to assist the judge in assessing the weight that should be attached to hearsay evidence. It provides that the court must have regard to all the circumstances and in particular…

Answer 35

The court will take the following into consideration when deciding what weight to attach to the evidence:

1) Reason that the witness is not being able to attend to give oral evidence (unless it is a very good one, court is unlikely to attach any weight to the statement given by somebody who is not prepared to come to court to be questioned on it)

2) Whether the original statement was made at the contemporaneously as the relevant fact that is being used to support it

3) Whether the evidence involves multiple hearsay (danger of mishearing, exaggeration and general inaccuracy through repetition)

4) Whether any person involved had any motive to coceal or misrepresent matters (e.g. employee who makes a statement with a view of pleasing their employer)

5) Whether the original statement was an edited account, or was made in collaboration with somebody else for a particular purpose

6) Whether the party seeking to rely on the statement has given proper notice to their opponent of its hearsay nature (e.g. late notice that the other party did not have a fair opportunity to respond to it)

contemporaneously means same time. E.g. a note made of the car registration number immediately after the car drives off will generally be more reliable than one made the next day, week or month.

Question 36

What questions will the judge ask when considering about hearsay?

Answer 36

(a) What issue, if any, does the hearsay evidence address?
(b) How important is that issue in the case?
(c) What other evidence is available on the same issue?
(d) Is the hearsay evidence more probative than any other evidence the party could obtain through reasonable efforts?

Question 37

What is multiple hearsay?

Answer 37

• Information (that is the subject of the evidence) has been passed through multiple people.

Example
Brian (giving evidence) states that Jonny told him that Billy said that the car was travelling at approx. 50 mph.

Question 38

Why is expert evidence useful?

Governed by Part 35.

Answer 38

• Bring specialist knowledge and judgement on areas that the court cannot be expected to assess, such as the quality of building work, value of a particular piece of land or extent of injuries suffered by the victim of a road traffic accident for example.

Question 39

Can the parties use expert evidence whenever they want?

Answer 39

No.

• The court is required to give permission. Permission is usually given when the court gives initial directions, but it can be applied for independently by the party seeking to rely on expert evidence at any point in the proceedings.
• Directions stage - either when case is allocated to the fast track or soon thereafter for intemediate, multi-track or at a case management conference

Question 40

What restrictions can the court put on expert evidence?

Answer 40

1) Can refuse expert evidence in its entirety
2) Limit the number of experts either generally or in relation to specific issues
3) Directing that the parties must agree experts
4) Limit expert evidence to written reports only.

Question 41

What information will the judge require in respect of expert evidence?

Answer 41

• Name of the expert where practicable
• The field the person is an expert in
• Their knowledge and experience to ensure they are suitable to give their evidence and the issues the expert will address

Expert evidence is often crucial to the outcome of the case and so it is in the parties interest to comply with the CPR in this regard

Question 42

What is the duty of an expert set out in Part 35?

Answer 42

1) Duty to assist the court by providing objective, unbiased opinions on matters within their own expertise. Although in may cases an expert is instructed by one particular party, the duty to the court overrides any obligation to the person who instructed them.

NOT DUTY
2) To assume the role of an advocate. However, still has a duty to the party who instructed them, e.g. they will be subject to the usual implied term to exercise reasonable care and skill under s13 of Supply of Goods and Services Act 1982 when considering and drafting their report.

Question 43

What is the benefit of a single joint expert?

Answer 43

• Where practical and in the interests of the overriding objective.
• Parties should attempt to agree the appointment of a single joint expert. If the other party does not agree to the appointment of the proposed expert, the court can still direct parties to obtain the evidence of a single joint expert.

Considering the following, whether it is:
(a) it is proportionate to have separate experts for each party on a particular issue
(b) the i**nstruction of an SJE is likely to assist in resolving the issue more speedily **and in a more cost- effective way
(c) there is likely to be a range of expert opinion

Question 44

Who chooses the expert - Fast track?

Answer 44

If the parties cannot agree on this, the court will select the expert from a list prepared by the parties

• Fast track- the usual order is for the single joint expert to be appointed unless there is good reason not to do so, rather than allowing each party to instruct their own.
• Where an expert is jointly instructed, they will send their report simulatenously to both parties with the costs being shared.
• Furthermore, in fast track cases, such evidence will normally be given by means of written reports and the experts will not be permitted to give oral evidence at the trial.

Question 45

Who chooses the expert - intermediate and multi-track cases?

Answer 45

More common for parties to instruct their own separate experts

Factors taking into account:
1) Amount in dispute
2) The importance to the parties
3) The complexity of the issues.

Intermiedate track
- Issues more restricted as oral expert evidence at trial is likely to be limited to one witness per party, except where a second expert is reasonably required and proportionate
- Any expert report must not exceed 20 pages excluding any necessary photos, plans and academic and technical articles attached to the report.

Example:

Anya has a large amount of money to invest, which she received from an inheritance. She instructs Clevedon Finance Ltd (Clevedon) to advise her on what investments to make but, over time, it becomes apparent that the shares are under- performing. After following the relevant pre- action protocol, Anya issues proceedings for professional negligence for the sum of £450,000, which Clevedon defends. Because of the complexity of the issues and the amount in dispute, the court grants permission for the parties to instruct separate experts. Anya and Clevedon will each instruct an expert to cover the issue of liability, namely whether Clevedon breached their duty of care to invest the funds with reasonable care and skill; and
to deal with quantum, specifically what would the value of Anya’s share portfolio have been if they had done so. This will provide the court with information on what investments Clevedon should have made on behalf of Anya and (consequently) her losses.

Question 46

What is required of experts in their expert report as per Part 35?

Answer 46

Export report should be addressed to the court and:

1) Details of expert’s qualifactions
2) Details of any literature or other material that has been relied on in making the report
3) A statement setting out the substance of all the facts and instructions that have been received from the parties instructing the expert
4) Make it clear which of the facts stated in the report are within the expert’s own knowledge
5) State who carried out any examination, measurement test or experiment that the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiement has been carried out under the expert’s supervision
6) Where there is a range of opinions on the matters dealt with in the report, summarise the range of opinions and give reasons for the expert’s own opinion
7) Contain a summary of the conclusions reached
8) State the qualification if the expert is not able to give an opinion without qualification
9) Contain a statement that the expert understands their duty to the court, has complied with that duty, and is aware of the requirements of the CPR
10) Be verified by a statement of truth
I confirm that I have made clear which facts and matters referred to in this report
are within my own knowledge and which are not. Those that are within my own
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.

Question 47

What happens if an expert breaches part 35 in respect of the report requirements?

Answer 47

• If the breach is serious, the party may not be allowed to rely on that expert’s evidence, but in most cases, the judge will simply take account of the breach when deciding what weight should be given to the expert evidence

Question 48

What happens if a single joint expert is appointed, but one party believes that the single joint expert is unfavourable and is unhappy?

Answer 48

• They can instruct another expert - ask court for permission and whether they are able to rely on it in proceedings
• Cross-examine the single joint expert at trial to expose what the party believes are the weaknesses and inconsistencies in the report
• Obtain a second report - send this to the single joint expert prior to trial. May result in the single joint expert re-evaluating their initial conclusions - be awware that the second report would not be able to be produced for the court.

Question 49

What happens if there are mutli experts?

The parties will exchange their expert reports

Answer 49

• Common in multi track trials
• Court will direct the parties to exchange their expert reports as part of the directions issued
• Parties must do this by the date set in the directions order.
• Once the report has been exchanged, it may become apparent that there are substantial areas of overlap (or not) or the parties may have the questions for the opposing experts.

Question 50

What happens are expert reports have been exchanged?

Answer 50

1. Discussion between experts
* Experts are encouraged to meet to discuss the contents of their reports with their opposition experts. The court has the power to order this if they feel it is appropriate. The purpose of the expert meeting is to
* Identify the issues that the experts agree on so that they are not unnecessarily contested at trial
* Identify the issues that they disagree on so that the court can see the main areas of dispute to focus attention on at trial
* What action if any has been taken to resolve these issues
* Any further material issues not yet raised and the extent to which these are agreed

2. Questions to experts
* Parties are also allowed to ask their opposition expert questions on the contents of the report. This must be done within 28 days of the report being served on them. The expert will then respond, however, there is no defined timescale set out in the CPR for this.

Following the discussions
Written joint statement - must be prepared for the court and signed by the experts stating the issues on which they agree and those on which they disagree with a summary of the reasons. Copies should be provided to the parties
Oral evidence - the judge will decide whether the expert may give oral evidence at trial. Although there is a presumption that the court will rely upon written reports, it is common on the multi-track for experts to be called to give evidence

Question 51

What are the professional conduct issues for the expert?

Answer 51

• When drafting the report, the expert must set out all of the instructions, whether written or oral that are material to the opinions expressed or upon which their opinions are based. This is to ensure that the report is not influenced in any way.
• E.g. a surveyor who is instructed to value a property on the basis of a quick sale - may arrive at a different figure than if asked to provide an optimal valuation
• Legal representatives should be aware that their instructions are not privileged from inspection and could be scrutinised by the court, should the court find reasonable grounds to consider the statement of instructions to be inaccurate or incomplete.