Evidence

Question 1

What is the legal burden of proof in civil claims?

Answer 1

On the claimant (ie. claimant must prove each fact unless admitted by defendant)

Exceptions: Burden of proof falls on defendant

• When D convicted of relevant criminal offence relating to same fact pattern
• Contributory negligence
• Mitigation of loss

Question 2

What are the exceptions to the rule that the burden of proof is on the claimant in civil claims?

Answer 2

Burden of proof falls on defendant

• When D convicted of relevant criminal offence relating to same fact pattern
• Contributory negligence
• Mitigation of loss

Question 3

What is the standard of proof in civil claims?

Answer 3

Claimant must prove fact on balance of probabilities

Question 4

How should numbers be expressed in a witness statement?

Answer 4

As FIGURES (not words)

Question 5

Who can sign the statement of truth in the witness statement?

Answer 5

The witness only

(Can’t be signed on their behalf by legal rep)

Question 6

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

Answer 6

If it is difficult to obtain a statement from the witness (eg. uncontactable abroad, hard to persuade)

Summary must contain witness’s name & address, evidence they can provide if known, if not known - matters they would be questioned at trial

Question 7

Can a witness add to their statement at trial?

Answer 7

No - unless court gives permission (v rare)

ie. statement must be comprehensive

Question 8

What is the difference between a witness statement & an affidavit?

Answer 8

Affidavits are sworn statements of evidence - maker swears / affirms before solicitor or other authorised person that contents true

Used rarely (eg. applic for freezing injunction or for search order)

Question 9

What is a ‘relevant’ fact?

Answer 9

One in dispute which must be proved by the party calling the witness

→ Any evidence included in a witness statement must be relevant

Question 10

Is opinion evidence by a witness admissible?

Answer 10

General rule: not admissible

Exception: if made as a way of conveying relevant facts personally perceived by them

Question 11

What is hearsay evidence?

Answer 11

1. A statement made outside court of relevant fact or admissible opinion
2. Which is repeated in court
3. To prove the truth of the matter stated

Question 12

Is hearsay admissible?

Answer 12

Yes if:

1) It is relevant and

2) There is no other reason making it inadmissible
eg. opinion not based on facts personally perceived

Question 13

When must a hearsay notice be served?

Answer 13

If the party does not intend to call the witness & seeks to just rely on statement

Hearsay notice must be served at same time as statement

Question 14

If a party intends to call a witness whose statement contains hearsay evidence, do they need to serve a hearsay notice?

Answer 14

No, just need to serve opponent with the statement

→ Opponent then decides whether to:

I. Ask court to order that maker of original statement attends for cross-e or

II. Serves notice of intention to attack credibility of the hearsay evidence

Question 15

If a party does not comply with the notice requirements for hearsay evidence, is the hearsay still admissible?

Answer 15

Still admissible, but failure may be** taken into account** when assessing weight given to it or when making costs order at end of trial

Question 16

What weight is attached to hearsay evidence?

Answer 16

Considered second best evidence of fact

Court must have regard to all circumstances, especially whether:

• Party could have called person who made original statement as witness
• Original statement made contemporaneously with events in question
• Involves multiple hearsay
• Any person involved has motive to conceal or misrepresent matters
• Original statement edited or made in collaboration with someone else
• Any attempt to prevent proper evaluation of weight of evidence

Question 17

Which 6 factors are set out in s4 CEA that the court must have regard to when considering what weight to attach to hearsay evidence?

Answer 17

• Party could have called person who made original statement as witness
• Original statement made contemporaneously with events in question
• Involves multiple hearsay
• Any person involved has motive to conceal or misrepresent matters
• Original statement edited or made in collaboration with someone else
• Any attempt to prevent proper evaluation of weight of evidence

Question 18

Can a party always use experts?

Answer 18

No - court’s permission is required (must show it is necessary)

Question 19

When are directions for experts issued?

Answer 19

On allocation or at CMC

Question 20

How many experts will be allowed?

Answer 20

For fast track: usually joint instruction of single expert

For multi track: may be separate instruction of expert_s_

Question 21

What is the duty of experts?

Answer 21

To assist court by providing objective, unbiased opinions on matters within their expertise

Nb. Overriding duty is to the court

Question 22

Who should the expert’s report be addressed to?

Answer 22

The court

Question 23

What details must the expert report include?

Answer 23

• Details of expert’s qualifications, any literature or other material relied on, who carried out any examinations etc.
• Statement setting out substance of all facts & instructions
• Where there is a range of opinion, must summarise this & give reasons for expert’s own opinion
• Summary of conclusions reached
• Statement that expert understands their duty to the court & has complied with this

Question 24

Does the expert report need to be verified by a statement of truth?

Answer 24

Yes

Question 25

What is the consequence if the expert’s report fails to comply with the formalities requirements?

Answer 25

Judge likely take account when deciding what weight should be given to the expert’s evidence

(If breach serious, party may not be allowed to rely on that expert’s evidence)

Question 26

Where joint instruction of a single expert, how is the expert evidence given at trial & how are the costs divided?

Answer 26

At trial, expert evidence by written report only & costs are shared

Question 27

What is the procedure where there is separate instruction of experts?

Answer 27

Exchange of expert’s reports simultaneously
⤋
Each party can put written qs to the expert within 28 days - their answers are treated as part of the report
⤋
Without prejudice discussion between experts to identify issues agreed, those in dispute, possible future action
⤋
Written joint statement summarising issues on which they agree & disagree with reasons
⤋
Presumption court will rely on written reports, but common for multi-track that experts give oral evidence