Evidence

Question 1

what are the 3 types of evidence?

Answer 1

1. documentary evidence = part of disclosure process
2. witness evidence (of fact and experts)
3. real evidence = items adduced as evidence

Question 2

what are the 2 types of witnesses and what is the difference between them?

Answer 2

1. witnesses of fact = give evidence in chief in a witness statement and generally attend court to be cross examined + cannot give opinion evidence
2. expert witnesses = give evidence in expert reports but do not usually give oral evidence at trial + can give opinion evidence of matters within their expertise

Question 3

what are the court’s powers to control evidence?

Answer 3

1. give directions on issues requiring evidence, nature of evidence, how evidence is placed before the court, length of witness statements
2. exclude evidence that is otherwise admissible
3. limit cross-examination
4. amplify a witness statement = allow a witness to give additional evidence in chief if there are material developments since exchange of WS (but this is not allowed to remedy deficiencies in original WS)
5. direct SJE to be appointed instead of separate experts

Question 4

what is a witness statement? what must the witness giving it do?

Answer 4

written statement signed by the person giving it which contains evidence that person would otherwise be allowed to give orally

WS can stand as evidence in chief at trial instead of the witness orally giving their EIC

Question 5

should a witness of fact attend trial?

Answer 5

the witness must attend trial, confirm the WS as its EIC, be cross-examined, and re-examined

if it cannot attend trial, the adducing party must seek to admit the statement as hearsay evidence

Question 6

what are the benefits of a witness giving their evidence in chief in the form of a witness statement instead of orally at trial? (3)

Answer 6

• Saves time of witness having to give their evidence in chief orally at trial
• Opposing party knows what the witness will say in advance (as WS are exchanged before trial)
• Facilitates settlement as parties can evaluate the merits of their case

Question 7

what happens if a witness statement is not served by the time directed by the court?

Answer 7

the witness may not be called to give oral evidence unless court gives permission

but party can apply for relief from sanctions

Question 8

if a party needs more time to exchange witness statements with the other party what can it do? (2 options)

Answer 8

1. approach the other party asking it to agree on an extension = parties can agree to an extension in writing of up to 28 days provided it does not put a future hearing date at risk and is made before the deadline
2. if the other party disagrees or if an extension puts a future hearing date at risk = apply to the court for permission to extend the deadline (but court can impose costs sanctions if future dates are prejudiced)

Question 9

what must a witness statement contain? (4 points)

Answer 9

• everything the witness has knowledge of and helps the party concerned prove the facts in issue (duty, breach, causation, loss)
• Witnesses of fact can only give evidence on what they perceive with their own senses - NOT opinions
• WS must be in the witness’ own words (but it is drafted by a lawyer)
• statement of truth = witnesses must ensure they honestly believe the contents of WS otherwise may face contempt of court

Question 10

is opinion evidence admissible?

Answer 10

general rule = no

exceptions:
- witnesses of fact can give opinions on obvious facts perceived drawing common sense conclusions e.g., she was drunk / she was driving fast
- experts can give opinions of matters within their own expertise

Question 11

what are affidavits?

Answer 11

written statement of evidence that is sworn before a person authorised to administer affidavit

can be used by witnesses of fact in addition to or instead of witness statements

Question 12

when are affidavits required as opposed to optional?

Answer 12

required for applications for a search order or freezing injunction

or where a rule, PD, or court order requires it

Question 13

when is evidence admissible? what are exceptions to this?

Answer 13

evidence that is relevant to the facts is admissible in civil proceedings

(but there are special rules for hearsay, opinion evidence, and privileged evidence)

Question 14

is hearsay admissible in civil proceedings?

Answer 14

yes - although:
- you may have to serve formal notice on the other party of your intention to rely on hearsay evidence
- the court may attach less weight to it and oral, documentary, or real evidence is better to be relied on

Question 15

what is the definition of hearsay?

Answer 15

oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated

(includes photographs, plans, and models)

Question 16

if a party wants to rely on hearsay evidence by a person who will not give evidence at trial, what must it do?
what happens if they do not do this?

Answer 16

• give formal notice to the other party identifying the hearsay and stating why the witness will not be called = must be served by the latest date for serving witness statements
• if formal notice is not give, the party can still rely on it (it is still admissible) but the court will attach less weight and penalise in costs

Question 17

what are the options for a party who receives notice of the other party’s intention to rely on hearsay evidence? (4 options)

Answer 17

1. request particulars of hearsay that are reasonable and practicable to enable it to deal with any matters arising from the fact that the evidence is hearsay (i.e., that it cannot cross-examine the statement maker)
2. call for the statement maker to be cross-examined = must be with court permission after an application
3. challenge the weight of the hearsay evidence at trial and ask the court to attach less weight to it
4. attack the credibility of the witness at trial = but must notify the other party of this intention before trial

Question 18

what would you advise someone intending to rely on hearsay evidence?

Answer 18

• the opposing party has several options available to it including cross-examining the statement maker with the court’s permission, challenging the weight of the hearsay, and attacking the witness’s credibility = which may have adverse tactical effects especially if the quality of the hearsay evidence is weak
• while admissible, the court attaches less weight on hearsay evidence than documentary, witness, or real evidence = especially where it would have been reasonable and practicable to produce a WS by the maker of the statement

Question 19

who is an expert and why would one be instructed?

Answer 19

a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise

can be instructed to prove disputed matters like:
- in professional negligence = did a professional fall below the standard of care expected of a reasonably competent professional?
- loss of future profit
- medical experts in PI cases

Question 20

what is the duty of experts? (4)

Answer 20

duty is to the court:
- to help the court on matters within their own expertise
- this overrides any obligation to the party instructing the expert
- give an independent and unbiased opinion
- must not assume the role of advocate for a particular side

Question 21

if a party wants to rely on expert evidence, what should it do?

Answer 21

apply for court’s permission - either by:
- stating in the DQ it wishes to rely on experts and the court allowing it while giving case management directions, or
- by a later interim application

Question 22

what does the court consider when faced with an application to rely on expert evidence?

Answer 22

court has a duty to restrict expert evidence to that which is reasonably required to resolve proceedings

(and may refuse experts if it is required and/or not proportionate in cost - usually in small claims or fast track cases)

Question 23

what are single joint experts? what is required when one is appointed?

Answer 23

• court can direct, or parties can agree, that a SJE be appointed to produce one expert report
• transparency between parties is needed = produce a single letter of instruction or if not possible produce two and exchange them
• claimant must serve anything the court orders on the SJE

Question 24

what is the benefit / downside of having a singe joint expert or appointing separate experts?

Answer 24

SJE:
- benefits = less costly + avoids difficulty of dealing with conflicting opinions + furthers overriding objective
- downsides = not suitable in more complex cases

separate experts:
- benefits = suitable in complex multi track cases where there is a difference of opinion + court will have the benefit of several opinions
- downsides = costly + takes longer for court to decide on issues of fact

Question 25

what does an expert produce and what must be done with it?

Answer 25

expert report = must be exchanged between parties otherwise it cannot be relied on

Question 26

what must an expert report contain? (3)

Answer 26

• material expert relies on (+ provide any photos, plans, or survey reports to other side upon exchange of reports)
• which facts are within or outside its knowledge or expertise
• answers to questions later put to the expert form part of their report

Question 27

if a party wants clarification on a matter in the opposing party’s expert report, what can it do? how is it limited with this?

Answer 27

put questions to the expert = answers form part of the report

limitations:
- can only be done once
- can only be to clarify the report
- must be within 28 days of service of report

expert does not have time limit to answer but if it does not then the adducing party may be prevented from relying on the evidence and/or cannot recover costs for the expert

Question 28

what are expert discussions?

Answer 28

• if parties instructed separate experts, there may be a meeting of experts to discuss and narrow the issues in dispute, producing a statement of matters they agree and do not agree on
• but agreements are without prejudice = they do not bind parties and cannot be referred to at trial unless parties expressly agree
• benefits = saves costs and time at trial

Question 29

do experts give oral evidence at trial?

Answer 29

generally no but the court can give permission for this (and they must be cross-examined)

Question 30

what options are available to a party if it receives an unfavourable report from an expert they instruct, an opposing party’s expert after exchange, or a SJE? (5)

Answer 30

1. put questions to the expert
2. ask permission to cross examine the opposing party’s expert
3. seek advice from another expert without formally asking court permission to rely on them
4. ask court permission to call another expert = but the original expert’s report will still be shown so this may damage the party’s credibility
5. consider settling

Question 31

can a party change experts if it already got permission from the court to rely on them?

Answer 31

it can apply to court to change experts but this is difficult, costly, and affects their credibility as the original expert’s report will be disclosed anyway