Evidence

Question 1

Who has the legal burden of proof for evidence?

Answer 1

The legal burden of prof lies with the claimant. Each fact must be provided, unless it is admitted by the opponent

Question 2

What is the exception to the legal burden of proof?

Answer 2

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

Question 3

When is the defendant repsonsible for legal burden of proof?

Answer 3

When there defendnat must prove that the claimants failure to take care contributed to the damage suffered

Eg contributory negligence

Question 4

Who has the standard of proof and at what level?

Answer 4

Claimant has it

Prove facts on the balance of probabilities

Question 5

What ist he rule under Part 32 on witness statements?

Answer 5

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

Question 6

What is a witness summary

Answer 6

This is when you apply to court without notice for an order to serve a written witness summary

Question 7

What is included in a witness summary

Answer 7

Witness name and address

Evidence witness can provide

Matters on which the witness would be questioned at trial.

Question 8

What should a witness statement include?

Answer 8

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

Question 9

What are the directions for exchange of witness statements?

Answer 9

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.

Question 10

How are the witness statements used at trial?

Answer 10

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.

Question 11

When may the witness add more during trial that is included in the witness statement?

Answer 11

If the court gets permission for additional examination in chief.

If new evidence arises
Or something has to be cleared up / amplified

Question 12

What is an affidavit ?

Answer 12

They are sworn statements of evidence.

The maker has to swear or affirm before a solicitor or authorised person, that the contents are TRUTE

Question 13

When may evidence be relevant?

Answer 13

They are relevant if they address facts which are in dispute and which have to be proved by the party calling the witness.

Question 14

Is opinion evidence admissible?

Answer 14

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

Question 15

How may facts personally perceived allow opinion evidence to be admitted?

Answer 15

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

Question 16

What is the definition of hearsay

Answer 16

A statement made outside court

Which is repeated in court

To prove the truth of the matter stated

Question 17

Which section is definition of hearsay set out

Answer 17

S 1(2) civil evidence act 1995

Question 18

What is first hand and. Multiple hand hearsay

Answer 18

First hand: the individual was told themselves, or saw it specifically themselves.

Multiple hearsay - it travels through various people before teh witness.

Question 19

When is hearsay evidence admissible?

Answer 19

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.

Question 20

What section provides that hearsay evidence is admissible

Answer 20

1(1) civil evidence act 1995

Question 21

What happens if a party does not comply with the hearsay notice requirements?

Answer 21

The hearsay is still admissible, BUT the failure of this may be taken into account when assessing the weight to be given to it.

Question 22

When should hearsay notice be served?

Answer 22

Same time as the witnes statement

Question 23

How does the court approach the issue of hearsay?

Answer 23

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?

Question 24

What are the 6 weights attached to hearsay evidence?

Answer 24

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.

Question 25

Where is the hearsay weight attachments present in statutes?

Answer 25

S 4 civil evidence act 1995

Question 26

Which section is expert evidence governed?

Answer 26

Part 35

Question 27

How do the courts restrict expert evidence?

Answer 27

Refuse to allow any at all

Limit the number of experts

Direct that parties must agree experts

Limit evidence to reports only

Question 28

What mus you ask the court for for expert evidence?

Answer 28

Permissio.
Considered at the directors stage.

Question 29

What will the judge need information on when decision if to allow expert evidence?

Answer 29

The name of expert
Field of expert
Knowledge and experience
Issue the expert will address

Question 30

When is expert evidence admissible?

Answer 30

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.

Question 31

What section shows the admissibility of expert evidence?

Answer 31

S 3(1)

Question 32

When is a SJE used?

Answer 32

Where both parties wish to submit expert evidnece on a particular sue, the court may direct only one expert

Question 33

When is an SJE appropriate?

Answer 33

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

Question 34

Who chooses the SJE?

Answer 34

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

Question 35

What type fo expert is most common in multi-track?

Answer 35

Separate. Own experts. A lot in dispute and complexity

Question 36

What is the procedure (5 steps) for separate experts to streamline the trial?

Answer 36

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

Question 37

What must be included in the form of expert evidence?

Answer 37

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

Question 38

What is the effect of the expert failing to comply with part 35?

Answer 38

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

Question 39

What is part 35?

Answer 39

Expert evidence, expert understands their duty to the court and has complied with this. Form and content of the report that they must file