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.
