Evidence Flashcards
Which of the following statements is correct as to the formalities required for a witness statement in civil proceedings?
A-It is best practice for a witness statement to indicate which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief.
B-A witness statement should always include the full name of the witness and his/her personal residential address.
C-It is best practice to include a statement of truth in a witness statement.
D-A witness statement should be drafted in the witness’s own language and in his/her own words.
E-Once a witness statement has been completed it should be signed in front of a solicitor or commissioner for oaths whose name and qualification must be printed beneath the witness’s signature.
Option D is correct (see CPR PD 32 paras 18.1 and 19.1 (8)).
Option A is wrong because it must also indicate which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief (CPR PD32 para 18.2).
Option B is wrong because a witness statement should use the witness’s work address where he/she is making the statement in his/her professional, business or other occupational capacity (CPR PD32 para 18.1(2)).
Option C is wrong because it is mandatory for a witness statement to contain a statement of truth.
Option E is wrong because this is the procedure which is followed where evidence is given in affidavit form. No such procedure is required where a witness statement is provided, although it must contain a statement of truth in the prescribed form (CPR PD32 para 20.2).
A solicitor is preparing evidence for a forthcoming civil trial in which the client is the claimant. The dispute involves complex issues relating to the manufacture and installation of aircraft engines. The court has given permission for the claimant to rely on an aviation expert as to whether the manufacture of the engines complied with relevant international standards. The client also wants to file an opinion from the same aviation expert as to whether the installation of the engines was conducted with reasonable care and skill.
What evidence, if any, can the client use or rely upon at the trial in the circumstances of this case?
A-A witness statement of fact from the expert setting out their opinion on the installation of the engines as this will assist the court given the expert’s aviation expertise; and an expert report addressing the manufacture of the engines.
B-An expert report addressing both the manufacture and installation of the engines, as both are issues in the case.
C-Two separate expert reports: one addressing the manufacture of the engines, and the other addressing the installation of the engines.
D-An expert report addressing solely the manufacture of the engines. Permission will be required to rely on any opinion as to the installation of the engines.
E-A witness statement of fact from the expert addressing solely the manufacture of the engines. Permission will be required to file a further witness statement addressing the installation of the engines.
Option D is correct. This option correctly identifies that only expert evidence can be produced on those matters in respect of which the court has given permission, i.e. the manufacture of the engines. It also correctly identifies the document in which that expert evidence will be set out, namely an expert report (produced pursuant to CPR Part 35). If the claimant wishes to file opinion (expert) evidence on the installation of the engines, it will need to first secure the court’s permission.
Option A is wrong. The expert cannot offer up a witness statement setting out their opinion on the manufacture of the engines as opinion evidence in witness statements is generally not allowed. Such opinion evidence could be given by way of expert evidence pursuant to CPR Part 35, but only where the court has granted permission, which is not the case here.
Options B and C are wrong in that the evidence produced by the expert in both cases goes beyond the scope of expert evidence that the court has permitted.
Option E is wrong as expert evidence is set out in expert reports, not witness statements of fact which address purely factual issues (under CPR Part 32).
A solicitor has been instructed to draft a witness statement for a client who has suffered a personal injury in a road traffic accident. The client provides the solicitor with information that they want to include in their witness statement, namely that the client’s friend told her that the defendant admitted liability for the accident at the scene but the client did not hear this and that the client has been told that the defendant is having an affair. The client also tells the solicitor that she thinks the defendant was travelling at 50 miles per hour, which was above the speed limit for the road and that in her opinion the engine in the defendant’s car was faulty.
Which of the following statements best describes the advice the solicitor should give regarding the admissibility of the evidence?
A-Evidence that the client believes that the defendant was travelling at 50 miles per hour is evidence of perception and is therefore admissible.
B-Only an expert witness can give admissible evidence about the speed the car was travelling at.
C-The client’s evidence of opinion about the car engine being faulty is relevant and admissible.
D-The evidence from the client’s friend confirming that the defendant admitted liability is hearsay evidence and is not admissible.
E-The evidence about the defendant having an affair is relevant and admissible.
Option A is the correct answer. Section 3(2) Civil Evidence Act 1972 confirms that a person can give a statement of opinion on a relevant matter on which he is not qualified if he is conveying facts perceived by him.
Option B is wrong because the witness of fact can comment on this see option A above. Option C is wrong because this is evidence of opinion which should be reserved for an expert. Option D is wrong because hearsay evidence can be included in a witness statement as long as it meets the requirements of s.1(2)(a) Civil Evidence Act 1972 but less weight will be attached to it. Option E is wrong because the fact that the defendant is having an affair is not relevant to the case and therefore it would not be admissible.
A claimant has issued a claim for breach of contract against a defendant. The value of the claim is £1,000 and it has been allocated to the Small Claims Track. It is the day of the hearing and the claimant wishes to call a witness to give evidence on his behalf. The claimant has not served a witness statement on the defendant.
Which of the following statements best describes whether the court will allow the claimant to call the witness to give evidence at the hearing?
A-The court will allow the claimant to call the witness because the rules on service of witness statements do not apply on the Small Claims Track.
B-The court will not allow the claimant to call the witness to give evidence because the claimant has not served a witness statement on the defendant within a reasonable time in advance of the hearing.
C-The court will allow the claimant to call the witness to give evidence but will adjourn the hearing in order to give the defendant an opportunity to produce evidence in rebuttal of the witness’ evidence.
D-The court will not allow the witness to give evidence if it considers that to do so would be unfair on the defendant because the defendant would not have been able to prepare a sufficient response to the witness’ evidence.
E-The court will allow the witness to give evidence but will take into account the failure to serve the witness statement in advance of the hearing when considering the credibility of the witness’ evidence.
Option D is the best answer. In applying the overriding objective the court is most likely to allow the evidence if it is relevant and proportionate to the issues in the case but may disallow it if to do so would mean that the parties were not on an equal footing/the case would not be dealt with fairly. Not allowing the defendant time to prepare a sufficient response to the witness’ evidence may be seen as not allowing the parties to deal on an equal footing and/or fairly and so the court will not allow the witness to give evidence if this is the case.
Options A and B are wrong: CPR 32.10, and the rules in part 32 on service, do not apply on the Small Claims Track but judges in those cases still have the power to restrict evidence under CPR 32.1 and 32.2 and so can refuse to allow the evidence.
Option C is not the best answer; it is possible but would almost certainly be disproportionate in a very low value claim. On the facts the claim is for £1,000 which will be deemed to be a very low value claim.
Option E is wrong as credibility would not be assessed in this way.
A solicitor is reviewing the first draft of a witness statement for a client. The draft witness evidence contains the following statement, which the solicitor immediately notes as being relevant to one of the key issues in dispute:
‘When I asked my brother what had happened to the invoices, he said that he saw me lock them in the safety deposit box in my office, which is not true because the safety deposit box is broken.’
Can the statement remain in the witness statement?
A-Yes, because it is admissible and it is not hearsay.
B-Yes, because it is admissible although it is hearsay.
C-No, because it is not admissible as it is hearsay.
D-No, because it is not admissible as it is an opinion.
E-No, because it is not admissible although it is not hearsay.
Option A is the correct answer because the statement is admissible as a statement of fact and it is not hearsay. The statement is not hearsay because the statement is not being presented to the court to show that it is true; see s.1(2)(a) Civil Evidence Act 1995, which defines hearsay as – “a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated”. The addition of the wording “which is not true because the safety deposit box is broken” stops the statement from being hearsay, as the witness is not relying on the statement, rather is simply using it to prove the opposite of what has been said by the brother.
Option B is wrong because the statement is not hearsay – see the answer to option A above.
Option C is wrong because the statement is admissible and it is also not hearsay – see the answer to option A above.
Option D is wrong because the statement is admissible and it is not opinion evidence.
Option E is wrong because the statement is admissible as a statement of fact, as it is relevant to one of the key issues in dispute.
A solicitor acts for a claimant, house building company. The solicitor is instructed that last year the claimant contracted with the defendant, a landscaping business, to carry out landscaping at a local luxury housing development that the claimant was close to completing. However, many of the plants used by the defendant have subsequently died causing the claimant sizeable losses. Pre-action negotiations have failed. Proceedings will shortly be commenced by the claimant. The solicitor is writing a letter of instruction to an expert to give an opinion on what caused the plants to die.
Which of the following statements best explains the rules relating to the instruction of the expert?
A-The expert must not serve the exclusive interest of the claimant because the expert’s duty is also to help the court on matters within the expert’s expertise, but the expert owes an overriding obligation to the claimant to act in its best interests.
B-The claimant needs the court’s permission to rely on expert evidence. In seeking that permission, the court must be provided with the field in which the expert’s evidence is required, the issues which that evidence will address and an estimate of expert’s costs.
C-Unless the court directs otherwise, the expert evidence will be given in a written report which must include a statement of truth that reads: “The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
D-The expert should be made aware that any failure to comply with the CPR or court orders, or any excessive delay for which the expert is responsible, will result in the expert being penalised personally in costs or the expert being debarred from giving expert evidence in the claim.
E-The expert’s written expert report must be addressed to the party instructing the expert and paying the expert’s fees. The report must include details of qualifications, a summary of facts and instructions given to the expert and refer to any literature and materials relied on.
Option B is the best answer as it is accurate in all that it states and properly reflects the provisions of Part 35 CPR. It does not include any inaccuracies.
Option A is wrong. The expert’s overriding obligation is to the court and not to the party instructing the expert.
Option C is wrong as it is not a proper reflection of the full wording required for a valid statement of truth and does not include the words: “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”.
Option D is not the best answer as it is the party instructing the expert, rather than the expert personally, who will usually bear the brunt of failure to comply with court orders or excessive delay.
Option E is wrong in that the report must be addressed to the court, not the party instructing and paying the expert. The second sentence is accurate.
A woman purchases a racehorse from a specialist breeding stables. The owner assures her that the racehorse is a pedigree and that both parents have won a number of prestigious races (statement 1). When the horse runs, it becomes apparent that it is far too slow and further inspection establishes that the horse was not bred from the stallion which was named as its father. The woman sues the stables that sold her the horse and includes in her witness statement evidence of the comment that was made to her by the owner (statement 1) and also what a friend in the racing world commented to her afterwards, namely that the stables were known to be untrustworthy – statement 2.
Which of the following correctly describes the evidence the woman may give in her witness statement?
A-Both statements are admissible hearsay.
B-Statement 1 is not hearsay but is admissible as it is relevant to an issue in dispute. Statement 2 is admissible hearsay.
C-Both statements are inadmissible opinion evidence.
D-Statement 1 is not hearsay but is admissible as it is relevant to an issue in dispute. Statement 2 is hearsay but it is inadmissible because it is opinion evidence.
E-Statement 1 is admissible hearsay and statement 2 is inadmissible opinion evidence.
Option D is correct.
Statement 1 is admissible evidence: it is relevant to the issue of misrepresentation as the woman is alleging that the statement was false and that she relied upon it to purchase the horse. However, it is not hearsay. Although it is an oral statement made by the owner outside court (at the stables), which the woman repeats in court, she is repeating it to prove it was said and not that it is true.
Statement 2 is hearsay: it is an oral statement made by her friend outside court that the woman is repeating to prove its truth – that the stable are not untrustworthy. However, the evidence is inadmissible because it is opinion and not based on facts personally perceived by the woman’s friend (just as the friend could not give this evidence herself to the court, so the woman cannot repeat it to the court).
A company wishes to call evidence from experts in support of their claim for breach of contract. The case involves a dispute about the running of assessments for online examinations in schools. There have been numerous problems with the system including mistakes with the uploading of assessments, the marking and the recording of the students’ grades. The defendant argues that this is due to the claimant’s employees’ failure to operate the system properly rather than the highly technical defects alleged by the company. The company is claiming £122,000 being the cost of a replacement system and £395,250 as damages for loss of profits.
Which of the following best describes the approach that the court will take to expert evidence?
A-The duty of the expert is primarily to the party instructing them but they must bear in mind their additional duty to the court.
B-Each party will be granted permission to instruct experts on the issues of liability and quantum.
C-The experts will be ordered to meet to identify the areas of agreement and disagreement and the judge will be made aware of these discussions.
D-Although it is preferable for the expert’s evidence to be included in the form of a report, a written statement is also acceptable.
E-The court will order that the issues are to be decided on the basis of the written reports alone.
Option B is correct. Because of the complexity of the issues and the amounts in dispute, this case is not suitable for a single joint expert and each party would be granted permission to instruct separate experts on both liability and quantum.
The overriding duty of the expert is to the court – hence, option A is wrong – although the expert also owes a duty to the party instructing them to exercise reasonable care and skill. Option C is wrong in that, although there would be a discussion between the experts (whether face to face or by telephone or video conference), this is without prejudice and so the judge would not be made aware of what was discussed. Option D is wrong as, to be admissible, the expert’s evidence must be in the form of a report that complies with Part 35. Option E is wrong because, although a court could order that the issues be decided on the basis of written reports only, this is unlikely in a dispute over technical matters involving the suitability and operation of an online assessments system where the claim for damages of over half a million pounds is likely to be hotly contested.
Liability-The state of being legally responsible for something.
Quantum-A required or allowed amount, especially an amount of money legally payable in damages.
The claimant, an engineer, is bringing a claim against his former employer, a company that produces car parts, in respect of an accident at work. The claimant alleges that he sustained a spinal injury as a result of the defendant company’s equipment falling on him whilst he was working on their premises. The defendant denies the claim in full. There have been no criminal convictions in respect of the accident.
Which of the following best describes the advice you would give to the Claimant?
A-The claimant must prove beyond reasonable doubt that the machinery fell on him.
B-The legal burden falls on the claimant to prove that the machinery fell on him.
C-The legal burden falls on the defendant to prove that the machinery did not fall on the claimant.
D-The claimant must prove there is a certainty of 25 per cent or more that the machinery fell on him.
E-If the defendant alleges contributory negligence, the burden falls on the claimant to disprove the defendant’s allegation.
Civil case = balance of probabilities (not reasonable doubt)
Option B is correct because in a civil claim the legal burden of proof lies with the claimant, and each fact must be proved unless it is admitted by the opponent.
Option A is wrong because the standard of proof in civil cases is on the balance of probabilities.
Option C is wrong because the legal burden falls on the claimant to prove their case.
Option D is wrong because balance of probabilities requires a certainty greater that 50%.
Option E is wrong because if the defendant alleges contributory negligence, the burden of proof falls on the defendant to prove the relevant facts.
The Claimant has issued proceedings against a construction company. It is alleged that that Defendant company failed to construct the foundations of a building properly. Both parties have obtained expert reports and the Claimant wishes to put questions to the Defendant’s expert.
Which of the following best describes the position in relation to questions to experts?
A-A party may ask any number of questions, about anything, to an expert about their report
B-If written questions are put to an expert who does not answer, the court may order that the party instructing that expert cannot rely on the evidence of that expert
C-Written questions must be answered within 28 days of the date the expert drafted their report.
D-The answers provided by the expert are not treated as part of the expert’s report
E-A party who puts a question to another party’s expert must pay for any additional fees charged by the expert in order to answer that question
Option B is correct. The court may order that the party cannot rely on the evidence of the expert and also order that the fees of that expert are not recoverable
Option A is wrong. R35.6(1) written questions must be proportionate r35.6(2)(c) questions must be for clarification only.
Option C is wrong. R35.6(2) (b) they must be answered within 28 days of service of the report.
Option D is wrong. The answers pursuant to R35.6(3) are treated as part of the report.
Option E is wrong the party or parties instructing the expert must pay any fees for answering questions put under rule 35.6.
Does an expert when providing evidence need to state their qualifications and any literature or material they have relied on?
Yes, the expert must (under CPR 35) give details of their qualifications and any literature or other material which has been relied on in preparing the report.
Does an expert report need to be addressed to the court?
Yes, it also needs to deal with the issues in the case and the expert needs to act independently or impartially.
Can an expert be sued for negligence?
Yes, because the expert owed a duty of care to the client to carry out their role with reasonable care and skill but failed to do so.
Option E is a correct as it outlines the legal position following the case of Jones v Kaney [2011] UKSC 13: an expert can be sued if he/she has carried out their role without reasonable care and skill. It is relevant here that the allegation of negligence does not involve questioning the expert’s accountancy expertise – the negligence arises from losing some of the papers so not producing a report which accurately states the client’s loss.
Multi-track expert evidence. Single (i.e. individual) or joint experts?
In multi-track claims involving large amounts of money and complex issues on which there might be a range of opinion, it is considered more appropriate and proportionate to allow the parties to incur the costs of obtaining their own expert evidence.
A case between two companies involving a substantial sum of money and complex issues is proceeding in the Queens Bench Division of the High Court. An order for directions provides permission for the parties to instruct its own experts on identified issues suitable for expert evidence. The order also provides that the experts should exchange their reports by a stated date and that, unless the reports are agreed, the experts should then have a discussion by a stated date, 28 days later.
Which of the following statements best describes the nature and purpose of the discussion between the experts directed by the court in the order.
A-The discussion will be on a without prejudice basis and the experts will aim to identify the issues between them and reach agreement if possible. The experts will be expected to prepare a joint statement and the court will permit attendance of the parties or lawyers if it maximises productivity of the experts’ discussion.
B-The discussion must be on a without prejudice basis and the experts will aim to identify the issues between them and reach agreement if possible. The experts will be expected to prepare a joint statement for the court of the issues on which they agree and disagree and a summary of their reasons.
C-The discussion must be entirely open and the experts will aim to settle as many issues as possible in the case. The experts will be expected to prepare a joint statement for the court in respect of the matters on which they remain in disagreement and a summary of their reasons.
D-The discussion must be on a without prejudice basis and the experts will aim to identify the issues between them and reach agreement if possible. The experts will be expected to prepare a joint statement for the court in respect of the matters on which they remain in disagreement.
E-The purpose of the discussion is to settle as many issues as possible following, open, frank and full communications. The experts will be expected to prepare a joint statement for the parties instructing them in respect of the matters on which they agree and disagree.
Option B is correct as it accurately reflects the nature and purpose of the discussion between the experts directed by the court in an order for directions.
Option A is wrong as it does not refer to any detail on the content of the joint statement and it indicates that the court will permit attendance of parties and lawyers. Generally, expert discussions take place in the absence of parties or lawyers though the court may permit it.
Option C is wrong. The discussion must be on a without prejudice basis and it is not the purpose of the experts to settle the case.
Option D is wrong. It is not accurate that the joint statement will only address issues on which the experts remain in disagreement: it will also address issues on which the experts agree.
Option E is wrong. The discussion will on be a without prejudice rather than an open basis and it is not the experts’ role to settle issues. The joint statement is prepared for the court, not the parties instructing the experts.
