Evidence Flashcards
Who has the burden of proof in civil claims?
The party making the allegation
What is the standard of proof in civil claims?
On the balance of probabilities
What is the general principle in civil evidence?
If a piece of evidence is relevant to the proceedings, it is admissible
What is opinion evidence?
Evidence of the opinion of a particular witness, as opposed to a direct account of the facts
What is hearsay evidence?
A specific type of evidence where the person giving evidence tells the court about a statement which was originally made by somebody else
Provided that evidence is relevant to the case it will be admissible unless it triggers one of the exceptions, what are the exceptions?
Opinion evidence - witnesses can only given evidence that is based on the facts of the case, not their own personal viewpoint. However the evidence can be facts based on what the witness personally perceived so they could say ‘ the car was travelling about 50mph’ or ‘it was cold outside’ but they cannot say ‘the defendant was travelling too fast for the conditions’ or ‘it was too cold to drive’
Hearsay evidence - admissible if the evidence relates to a relevant fact and it is not a repetition of a opinion that is not a perception of the facts
If a party wishes to rely on hearsay what do they need to do?
- give notice to the other parties
- the notice requirements depend if the party wishes or not to call the witness to give oral evidence - if intending to call the witness:
- the witness statement containing the hearsay must be served on the other party - if not intending to call the witness:
- the whole statement becomes hearsay
- a separate formal notice is required
- the other party can then ask the court to order the witness to be called to court to be cross-examined or serve a notice to attack the credibility within 14 days of being served the hearsay notice
What weight is the court likely to give hearsay evidence?
The court will take the following into consideration:
- the reason the witness has not been able to attend
- whether the 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 persons involved had any motive to conceal or misrepresent matters
- whether the statement was an edited account or made in collaboration with somebody
- whether proper notice was given to the hearsay evidence
How should a witness statement be drafted?
In the first person and in the witness’ own words or style of language
What information should a witness statement contain?
- full name
- place of residence or address they work if being made in a professional capacity
- occupation
- process in which the statement has been prepared (face to face, telephone, interpreter)
- statement of truth
Is opinion evidence of an expert admissible?
Yes as long as it is on a matter relevant to their expertise
Who does an expert owe their duty to?
Their overriding duty is to assist the court even though they have been instructed by one of the parties
Can the parties have as many experts as they wish?
No, expert evidence is restricted to what is reasonably required to resolve the proceedings and where practical and in the interests of the overriding objective, parties should attempt to agree the appointment of a single joint expert
What if the parties do not agree to the appointment of the proposed expert?
The court can still direct parties to obtain the evidence of a single joint expert provided they have taken into consideration:
- the amount in dispute
- the importance to the parties
- the complexity of the issues
Once an expert report has been produced, can the parties raise questions or queries on the contents?
Yes and once the report is finalised it will be filed with the court by the deadline laid out in the directions
