evidence Flashcards
when is a notice for hearsay required? vs not required
- Evidence is a witness statement of a person who will give oral evidence at trial- no formal notice is required notice of the hearsay is deemed served when the witness statement is served on the other party
- Evidence is a witness statement of a person who will not give oral evidence at trial- No formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons
All other cases- Formal notice must be given to the other party identifying the hearsay, stating that party wishes to rely on it and the reason why the witness will not be called
How can a party respond to the intention to rely on hearsay?
- Request for particulars of hearsay
- Call for cross- examination- no later than 14 days after notice
- Challenge weight of hearsay evidence- no later than 14 days after notice
- Challenge credibility - no later than 14 days after notice
Duty of experts
The duty of experts is to help the court on matters within their own expertise and this overrides any obligation to the party instructing the expert
Single joint experts
which track?
how do parties instruct?
who servers court order?
- SJE are often ordered in small claims track/fast track but are less appropriate in multi-track claims
- Where there is a single joint expert, there must be transparency between parties – it might be practicable for parties to produce a joint letter of instruction but where they cannot agree then the instructions each party sends the expert must be shared with the opposing party.
- If the court makes an order that requires the expert to do something, the CLAIMANT serves such order on the single joint expert.
Role of experts
1) Expert evidence presented to a court should be independent – uninfluenced by litigation
2) Independent objective opinions/assistance should be provided to the court. An expert should never assume the role of the advocate.
3) An expert witness should state the facts or assumptions on which their opinion is based. Experts should not omit to consider material facts which could detract from their opinion.
4) An expert witness should make it clear when a question or issue falls outside their expertise.
5) If the opinion was not properly researched because it was considered that insufficient data was available, then that must be stated with an indication that the opinion is provisional.
6) If, after exchange of reports, an expert witness changes their mind on a material matter, this should be communicated to the other party, and when appropriate to the court.
7) Photographs, plans, survey reports and other documents referred to in the expert evidence must be provided to the other side at the same time as the exchange of reports.
Court permission is needed
- A party needs the court’s permission/order to adduce and rely on expert evidence in proceedings by seeking a direction at the case management stage
- The party applies to rely on expert evidence by providing, in the directions questionnaire, info on estimated costs and the field of expertise.
o The expert’s name may be provided but does not have to be because if you do not like their findings you have to reapply to the court to appoint another expert and the court may order that the first expert’s findings be disclosed to the other party. - The court’s permission is not needed to instruct an expert – it is needed to rely on expert evidence in proceedings
is export report privileged
no
what is standard disclosure
document which the party:
- relies on
- adverse effect on their own case
- adverse effect on another party’s case
- support another party’s case
what are the three lists of under which documents are disclosed
(a) ‘I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.’
(b) ‘I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege].’
(c) ‘I have had the documents numbered and listed below, but they are no longer in my control.’
Note on privileged documents: when listing the documents, it is not necessary to list individually each document for which the party is withholding inspection – generally describing what they are suffices (e.g., correspondence between D and solicitor)
what are the three lists of under which documents are disclosed
(a) ‘I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.’
(b) ‘I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege].’
(c) ‘I have had the documents numbered and listed below, but they are no longer in my control.’
Note on privileged documents: when listing the documents, it is not necessary to list individually each document for which the party is withholding inspection – generally describing what they are suffices (e.g., correspondence between D and solicitor)
what is the disclosure statement made with every list of document
- sets out the extent of the search made (i.e., that the search was reasonable and proportionate and also what was not searched for - e.g., documents predating a certain date)
- certifies the party understands its duty to disclose the documents; and
- certifies that, to the best of the party’s knowledge, it has carried out that duty.
what is the disclosure statement made with every list of document
- sets out the extent of the search made (i.e., that the search was reasonable and proportionate and also what was not searched for - e.g., documents predating a certain date)
- certifies the party understands its duty to disclose the documents; and
- certifies that, to the best of the party’s knowledge, it has carried out that duty.
what steps are taken to ensure compliance to disclosure (4)
- A solicitor is required to ‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure A solicitor should therefore advise its client of the disclosure obligations at the outset of the case.
- A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission (CPR 31.21).
- Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth (CPR 31.23).
- Supplemental lists - Supplemental lists may need to be prepared and served if additional documents falling within a party’s disclosure obligations come to light, or are created, after the disclosure list is served
which documents have to disclosed, if mentioned in what evidence?
- statement of case
- witness statement
- witness summary
- affidavit
- experts report
