Evidence Flashcards
What is the general rule for the admissibility of evidence?
If it is relevant to the case, it is admissible.
Is opinion evidence admissible?
Witnesses can only give evidence to the court based on facts except where:
- evidence is based on facts personally perceived by the witness (look at whether they have stated a fact or whether they have drawn some sort of conclusion from it); or
- it is expert evidence.
What is heresay evidence?
A statement made outside of court by somebody who did not originally make the statement to prove the truth of a particular fact or matter instead.
What is the admissibility test for hearsay?
It will be admissible if:
- it relates to a relevant fact;
- is not a repetition of an opinion that is not a perception of the facts.
What are the procedural requirements to use hearsay evidence?
Party wishing to rely on it must serve notice to the other parties to the claim. If the party is intending to call the witness to court to give oral evidence, the witness statement containing the hearsay evidence must be served on the other party.
If the party is not intending to call the witness, the whole of that witnesses’ statement becomes hearsay;
The party must serve a separate formal notice with the witness statement identifying the hearsay evidence and giving reasons as to why the witness will not be called to trial;
The party who has been served with the notice can then ask the court to order that the witness be cross examined or serve a notice of attack of credibility.
If a notice is not served then it will not make the evidence inadmissible but it may attack the weighting that the court attaches to it.
What weight will the court attach to the hearsay evidence?
The court will consider:
- the reason the witness has not been able to attend to give oral evidence
- whether the original statement was made at the same time as the relevant fact that it is being used to support
- whether the evidence involves multiple hearsay
- whether any person involved had motive to conceal or misrepresent matters
- whether the statement was an edited account or was made in collaboration with somebody else or for a particular purpose
- whether the party seeking to rely on it has given proper notice to their opponent
When can a party rely on expert evidence?
When permission has been provided by the court.
What is the overriding duty of the expert?
To assist the court.
Should a single joint expert be appointed?
Yes, parties should first try and agree on one and court can still direct to obtain from one if they have taken into account:
- the amount in dispute
- the importance to the parties
- the complexity of the issues
What can you do if the report of the SJE is unfavourable to your client?
- instruct another expert (with permission of the court)
- cross examine the single joint expert
- obtain a second report and send to SJE prior to trial
What happens after expert reports are exchanged?
Discussion between experts
Questions to experts - parties are also allowed to ask the opposition’s expert q’s and out these to them within 28 days of the report being served on them
