Evidence Flashcards
Who has the legal burden of proof for evidence?
The legal burden of prof lies with the claimant. Each fact must be provided, unless it is admitted by the opponent
What is the exception to the legal burden of proof?
Where the defendant in civil proceedings have been convicted of a relevant criminal offence.
Under s 11 civil evidence Act 1968, the burden of prof is reversed. Therefore, if a defendant wishes to argued they should not have been convicted, they must PROVE this
When is the defendant repsonsible for legal burden of proof?
When there defendnat must prove that the claimants failure to take care contributed to the damage suffered
Eg contributory negligence
Who has the standard of proof and at what level?
Claimant has it
Prove facts on the balance of probabilities
What ist he rule under Part 32 on witness statements?
Under Part 32, if a party wises to call a witness, they must serve a witness statement on the other arty setting out all the facts whcih the witness wll be allowed to give orally at trial
What is a witness summary
This is when you apply to court without notice for an order to serve a written witness summary
What is included in a witness summary
Witness name and address
Evidence witness can provide
Matters on which the witness would be questioned at trial.
What should a witness statement include?
Title of proceedings
Witnesses address, occupation, description etc
Chronological sequence of the events
Evidence that individual wants to provide on behalf of the party that called them
First person
Indicate whcih statements are made from their own knowledge and which are based on information adn belief, with source
Any documents - AP1 etc
Statement of truth
What are the directions for exchange of witness statements?
Court will give directions as to when and how witness statements are exchanged, when the track is decided.
Usually a few weeks after disclosure and inspection of documents.
How are the witness statements used at trial?
Witness called to give oral evidence.
Before the hearing, judge will have read all within the trial bundle.
Witness goes into box, takes oath, be shown a copy of their statement and confirm if the contents are true.
When may the witness add more during trial that is included in the witness statement?
If the court gets permission for additional examination in chief.
If new evidence arises
Or something has to be cleared up / amplified
What is an affidavit ?
They are sworn statements of evidence.
The maker has to swear or affirm before a solicitor or authorised person, that the contents are TRUTE
When may evidence be relevant?
They are relevant if they address facts which are in dispute and which have to be proved by the party calling the witness.
Is opinion evidence admissible?
General rule is no, because the function of a witness is to give evidence of relevant facts from which the court can raise conclusions.
However, there are situations where it is difficult to separate opinion and fact
- personally perceived
- expert evidence
How may facts personally perceived allow opinion evidence to be admitted?
A witness may give astatement of opinion, if made as a way of conveying relevant facts personally perceived by them.
S 3(2) civil vidence act 1972
What is the definition of hearsay
A statement made outside court
Which is repeated in court
To prove the truth of the matter stated
Which section is definition of hearsay set out
S 1(2) civil evidence act 1995
What is first hand and. Multiple hand hearsay
First hand: the individual was told themselves, or saw it specifically themselves.
Multiple hearsay - it travels through various people before teh witness.
When is hearsay evidence admissible?
In civil proceedings it is admissible, if it is served to the other party with a statement, and the opponent must then decide whether to ask the court to order that the maker of the original statement attends fro cross-examination, or serve notice of intention to attack the credibility of hearsay evidence.
What section provides that hearsay evidence is admissible
1(1) civil evidence act 1995
What happens if a party does not comply with the hearsay notice requirements?
The hearsay is still admissible, BUT the failure of this may be taken into account when assessing the weight to be given to it.
When should hearsay notice be served?
Same time as the witnes statement
How does the court approach the issue of hearsay?
What issue does it address?
How important is that issue?
What other evidence is available on teh same issue?
Is hearsay evidence mor prbative than any other evidence the party could obtain?
What are the 6 weights attached to hearsay evidence?
If it would be reasonable and practicable for the party to have called the person who made the original statement
If the original statement was made contemporaneously with events in question
If evidence involves multiple hearsay
If person had any NOTICE to conceal or misrepresent matters
Whether the original statement was edited
If circumstances suggest an attempt to prevent property evaluation of weight of evidence.
Where is the hearsay weight attachments present in statutes?
S 4 civil evidence act 1995
Which section is expert evidence governed?
Part 35
How do the courts restrict expert evidence?
Refuse to allow any at all
Limit the number of experts
Direct that parties must agree experts
Limit evidence to reports only
What mus you ask the court for for expert evidence?
Permissio.
Considered at the directors stage.
What will the judge need information on when decision if to allow expert evidence?
The name of expert
Field of expert
Knowledge and experience
Issue the expert will address
When is expert evidence admissible?
Where a person is called as a witness in any civil proceedings, his inion on any relevant matter on whcih he is qualified to give expert evidence shall be admissible in evidence.
What section shows the admissibility of expert evidence?
S 3(1)
When is a SJE used?
Where both parties wish to submit expert evidnece on a particular sue, the court may direct only one expert
When is an SJE appropriate?
Court will decide if:
It is proportionate to have separate experts
If the instructions of an SJE is likely to be quicker and cheaper
If there is likely to be a range of expert opinion
Who chooses the SJE?
Court will select expert IF the parties cannot agree on who teh SJE will be.
They wil select it from a list prepared by the parties
What type fo expert is most common in multi-track?
Separate. Own experts. A lot in dispute and complexity
What is the procedure (5 steps) for separate experts to streamline the trial?
Exchange : deadline to exchange exports reports
Questions: each party ay, within 28 days, put written questions to the expert for claritifcation of their report
Discussion: court may der a without prejudice discussion between experts.
Written joint statement: must be prepared for the court and signed by experts.
Oral evidnece: judge will decide whether expert may give oral evidence at trial
What must be included in the form of expert evidence?
Address to the court
Details of qualifications
Any literature or material relied on
Statement settling out facts and instructions
Say who carried out tests/experiments
If there is a range of opinion
Summary of conclusions reached
Statement of truth
What is the effect of the expert failing to comply with part 35?
Party may not be alowed to rely on that experts evidence.
In most cases, the judge will simply take into account the breach when decision what weight shoudl be given to the evidnece
What is part 35?
Expert evidence, expert understands their duty to the court and has complied with this. Form and content of the report that they must file
