Evidence

Question 1

What is the standard of proof in civil cases?

Answer 1

The balance of probabilities

Question 2

Who bears the burden of proof in civil cases?

Answer 2

The party who is making the allegation

Question 3

What is opinion evidence?

Answer 3

Evidence of the opinion of a particular witness as opposed to a direct account of the facts

Question 4

What is hearsay evidence?

Answer 4

Specific type of evidence where the person giving evidence tells the court about a statement which was originally made by somebody else

Question 5

When will evidence be admissible?

Answer 5

Where it is relevant to the case unless it is caught by an exception such as opinion evidence and hearsay

Question 6

In what two circumstances will opinion evidence be heard by the court?

Answer 6

• evidence based on facts that a personally perceived by the witness
• expert opinion evidence

Question 7

What is evidence based on facts that a personally perceived by the witness?

Answer 7

Statements that are technically opinions but only to the point that the give the witness’s perception of a fact

Question 8

What is expert opinion evidence?

Answer 8

Opinions that are given by an expert on any relevant matter on which the expert is qualified to give an opinion

Question 9

What is hearsay evidence?

Answer 9

A statement made outside of court that is repeated in court by somebody who did not originally make the statement to prove the trust of a particular fact or matter stated

Question 10

What four questions should be asked in relation to whether hearsay evidence is admissible or not?

Answer 10

• does the evidence in question fall under the definition of hearsay?
• is the hearsay evidence admissible according to the test?
• have the procedural requirements to use hearsay evidence been complied with?
• what weight is the court likely to attach to the hearsay evidence?

Question 11

What is the test in deciding if hearsay is admissible or not?

Answer 11

Hearsay will be admissible when:

• it relates to a relevant fact and
• is not repetition of an opinion that is not a perception of the facts

Question 12

What procedural requirements are there for using hearsay where the party is intending to call the witness to court to give oral evidence?

Answer 12

The witness statement containing the hearsay evidence must be served on the other party

Question 13

What procedural requirements are there for using hearsay where the party is not intending to call the witness to court to give oral evidence?

Answer 13

Party wishing to rely on the evidence must serve a separate formal notice with the witness statement identifying the hearsay evidence confirming that they wish to rely on it at trial and giving reasons why the witness will not be called

Party who has been served with the notice can then ask the court to order that the witness be called to court to be cross-examined on their evidence or serve a notice to attach credibility within 14 days of being served with the hearsay notice

Question 14

What happens if notice of hearsay is not served on other party?

Answer 14

Will not make the evidence inadmissible but may affect the weighting that the court attaches to it at trial

Question 15

What considerations will the court likely take into account when deciding what weight to attach to the evidence?

Answer 15

• the reason that the witness has not been able to attend to give oral evidence (unless it is very good one court not likely to attach weight to statement)
• whether the original 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 person involved has nay notice to conceal or misrepresent matters
• whether the original statement was an edited account or was made in collaboration with somebody else for a particular purpose
• whether the party seeking to rely on the statement has given proper notice to their opponent of its hearsay nature

Question 16

What is notice to attach credibility?

Answer 16

A document which notifies a party that the opponent wishes to challenge their witness testimony on the basis that the witness is unreliable, untrustworthy or biased

Question 17

What is multiple hearsay?

Answer 17

Where the information is subject of evidence that has been passed through multiple people

Question 18

What should be at the top of a first page of a witness statement?

Answer 18

• the party on whose behalf it is made
• the initials and surname of the witness
• the number of the statement in relation to that witness
• the identifying initials and number of each document referred to
• the date the statement was made
• the ate of any translation

Question 19

What should be in the introduction to the main body of the witness statement?

Answer 19

• full name of witness
• witness’s address (home if personal capacity, place of work if professional capacity)
• their occupation or if they have none their description
• that they are either a party to the proceedings or employee of party if that is the case
• process by which the witness statement has been prepared (eg face to face or telephone)

Question 20

What should be in the main body of the witness statement?

Answer 20

• the facts and dates of the witness’s story, told in chronological order with any material facts included and in the witness’s own words
• which of the statement in it are made from the witness’s own knowledge and which are matters of information or belief
• the source for any matters of information or belief

Question 21

How is a witness statement verified?

Answer 21

By a statement of truth at the end of the witness statement:

‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’

Question 22

What will generally happen where a witness gives a witness statement?

Answer 22

They will attend trial. Their witness statement will be accepted as their evidence in chief following them confirming its contents are true by oath. The opposition will then be given an opportunity to cross-examine the witness

Question 23

Does a party need permission of the court in relation to expert evidence?

Answer 23

Not to instruct an expert but yes to rely on expert evidence in trial

Question 24

When is permission to rely on expert evidence given by the court?

Answer 24

Normally at initial directions but permission can be sought any time in proceedings

Question 25

What is expert evidence normally restricted to?

Answer 25

What is reasonably required to resolve the proceedings

Question 26

Who does an expert primarily owe duties to?

Answer 26

The court so they cannot amend their report to make it more favourable to the party that instructed them

Question 27

Why should parties instruct a joint expert if possible?

Answer 27

As it furthers the overriding objective to minimise costs

Question 28

What should an expert do?

Answer 28

They should produce an expert report

Question 29

What should be contained in an expert report?

Answer 29

• details of qualifications
• details of literature or other material relied on for report
• statement setting out substance of facts and instructions
• make clear which of facts stated in report are within expert’s own knowledge
• say who carried out any examination, measurement, test or experiment that expert used and their qualifications
• whether there is a range of options on matters dealt with my the report
• contain a summary of the conclusions reached
• state the qualification if the expert is not able to give an opinion without qualification
• statement that expert understands their duty to the court
• statement of truth

Question 30

What happens with single joint expert report?

Answer 30

Copy of report is produced for all parties who can then raise questions.

Once finalised it will be filed with the court

Question 31

What can a party do if they are unhappy with single joint expert report?

Answer 31

• instruct another expert, however will need court permission to rely on it
• cross-examine single joint expert to expose weaknesses of report
• obtain second report and send this to single joint export prior to trial as it may lead to them reviewing their report

Question 32

What happens where there are multiple experts?

Answer 32

They experts should have a discussion between themselves

Question 33

What is the purpose of a meeting between the experts?

Answer 33

• identify the issues that the experts agree on so that they are not unnecessarily contested at trial
• identify the issues that they disagree on so that the court can see the main areas of dispute to focus attention on at trial

Question 34

How long do parties have to ask questions to opposition expert?

Answer 34

28 days of report being served on them