Evidence

Question 1

How does the court control evidence in civil proceedings, and what factors does it consider when exercising this control?

Answer 1

The court’s control over evidence in civil proceedings is guided by CPR Parts 32, 33, and 35. The court may issue directions concerning:

• Issues requiring evidence: The court determines whether evidence is needed on issues such as liability, causation, or quantum (the amount of damages).
• Type of evidence required: The court specifies whether evidence should come in the form of documents, factual witness testimony, or expert reports.
• Number of witnesses: The court may limit the number of factual witnesses each party can call at trial.
• Method of presenting evidence: Evidence can be presented either orally or through written statements, depending on the court’s directions.
  When making these decisions, the court keeps the overriding objective in mind, per CPR r 1.1, which is to deal with cases justly and at a proportionate cost.

The court remains actively involved throughout the proceedings and may exclude evidence if it finds that an issue is no longer important, even close to the trial.

Question 2

What is the general rule regarding the burden of proof in civil proceedings, and what exceptions can apply?

Answer 2

The burden of proof refers to the obligation of a party to present sufficient evidence to establish their claim:

• General Rule: In civil cases, the burden of proof lies with the claimant. The claimant must prove each fact they assert unless the defendant admits the fact. For example, in a breach of contract claim, the claimant must prove:

1. A contract existed between the parties.
2. The defendant breached the contract’s express or implied terms.
3. The claimant suffered a loss due to the breach.

• Exception: Under s 11 of the Civil Evidence Act 1968, if the defendant has been convicted of a relevant criminal offence, the burden of proof may shift to the defendant to disprove the conviction. This is because a conviction in criminal court requires proof beyond a reasonable doubt, which is a higher standard than in civil cases.

Question 3

What is the standard of proof required in civil cases, and how does the court evaluate the evidence presented by the claimant?

Answer 3

In civil cases, the standard of proof is the balance of probabilities. This means that the judge must be persuaded that the claimant’s version of events is more likely to be true than the defendant’s. The judge does not require absolute certainty but must be satisfied that the probability of the claimant’s case being true exceeds 50%. The judge evaluates various forms of evidence, including:

• Oral testimony from lay witnesses (also known as witnesses of fact).
• Expert reports, which provide professional opinions.
• Documentary evidence provided by both parties.
  The judge must assess the evidence to determine which version of events is more credible and reliable.

Question 4

What is the general rule about witness testimony in civil litigation, and what happens if a witness statement is not served?

Answer 4

The general rule, under Part 32 of the CPR, is that any fact a party intends to rely on must be proven at trial through oral testimony. However, this rule is modified in practice because most evidence in civil litigation is dealt with in writing through witness statements.

• Witness statements: These must be served on the other parties before the trial and include all facts the witness would give orally at trial. Inadmissible or irrelevant material must be excluded.
• Failure to serve a witness statement: If a witness statement is not served for any reason, the witness can only testify at trial with the court’s permission. Such permission is rarely granted. The purpose of witness statements is to streamline the trial by avoiding lengthy oral testimony.

Question 5

What is a witness summary, and in what situations might it be used instead of a witness statement?

Answer 5

A witness summary is an alternative to a full witness statement when it is difficult to obtain the latter. It may be used when:

• The witness is uncontactable (e.g., they are abroad and unable to provide a statement).
• The witness is unwilling to cooperate, perhaps because testifying could jeopardize their employment or other personal interests.

A party may apply to the court without notice for permission to serve a witness summary, which includes:
* The witness’s name and address.

• The evidence the witness can provide (if known).
• If the evidence is not known, the summary outlines the issues on which the witness would be questioned at trial.

While witness summaries are less detailed than full statements, they are useful when there is no alternative form of evidence available.

Question 6

What are the formal requirements for the structure and content of witness statements under CPR 32, and why is compliance important?

Answer 6

Witness statements must adhere to specific formatting rules outlined in the Practice Direction attached to CPR Part 32. These include:

• Heading: The statement should include the title of the case, the witness’s name, the statement number, and the date.
• Opening paragraph: The witness’s address and occupation should be stated, along with whether the statement is made in the course of their employment or business. If the witness is involved in the proceedings, this should also be indicated.
• Paragraph numbering: All paragraphs must be numbered, and dates must be expressed as figures (e.g., 16 January 2022).
• Chronology: The events described in the statement should follow a clear, chronological order.
  
  • First-person perspective: The statement must be written in the first person and reflect the witness’s own words.
• Statement of truth: The statement must end with a declaration that the witness believes the facts stated are true, signed by the witness (not by their legal representative).
  Failure to comply with these formalities may result in the court refusing to admit the witness statement as evidence.

Question 7

Why are witness statements exchanged simultaneously, and how does this timing relate to the overall litigation process?

Answer 7

Witness statements are exchanged simultaneously to ensure fairness. If one party could see the other’s witness statement first, they could potentially adjust their evidence or strategy accordingly.

The court issues directions for when witness statements should be exchanged, usually after the disclosure and inspection of documents, to give both parties enough time to review relevant materials.

This timing allows witnesses to prepare their statements with a full understanding of the evidence. In complex cases, the interval between disclosure and exchange may be extended.

Question 8

How is a witness statement used at trial, and what restrictions are placed on the introduction of additional evidence during the trial?

Answer 8

At trial, the witness confirms the accuracy of their statement under oath or affirmation. This statement becomes the witness’s evidence-in-chief, meaning that it stands as their main testimony.

The judge will have already reviewed the witness statements before the hearing.

After confirming the statement, the witness is subject to cross-examination by the opposing party.
If new, relevant evidence arises after the statement was served, the witness cannot add to their statement without the court’s permission.

Such permission is only granted in exceptional cases where the judge finds a valid reason for the omission of evidence from the original statement.

Question 9

What are affidavits, and in what circumstances are they still used in civil proceedings?

Answer 9

An affidavit is a sworn statement of evidence that differs from a witness statement because the person making the affidavit must swear or affirm before a solicitor (not their own) or another authorized person that the contents are true.

Affidavits were traditionally the main method of presenting evidence before the introduction of the Civil Procedure Rules (CPR), but now they have been largely replaced by witness statements.
However, there are still some circumstances where affidavits are required, including applications for:

• Freezing injunctions, which prevent a party from disposing of assets.
• Search orders, which allow a party to search premises and seize evidence.
  These specific legal contexts require the formality and sworn nature of affidavits due to the seriousness of the orders being sought.

Question 10

Why is the relevance of evidence so important in civil proceedings, and how is relevance determined?

Answer 10

Relevance is a fundamental requirement for evidence to be admissible in civil proceedings. Including irrelevant material can waste time and increase the cost of the trial without assisting in the resolution of the issues.

The rules of evidence state that irrelevant material is inadmissible.
The relevance of evidence is determined by the issues that the court must decide, which are typically outlined in the particulars of claim and defence.

The relevant issues are those in dispute—facts that one party asserts and the other denies or does not admit.
For example, if a case involves a breach of contract claim, evidence about the defendant’s past unrelated actions would not be relevant, while evidence proving whether the contract existed or was breached would be.

Question 11

What is the general rule regarding opinion evidence in civil cases, and what exceptions exist?

Answer 11

The general rule is that opinion evidence is not admissible in civil proceedings because witnesses are required to give testimony based on facts, not opinions. The court’s role is to draw conclusions based on the facts presented by the witnesses.
However, an exception to this rule is when a witness is unable to separate fact from opinion because they are describing something they personally observed. Under s 3(2) of the Civil Evidence Act 1972, a witness may express an opinion if it helps convey the facts they personally perceived.

For example:

• A witness to a car accident may say the car was traveling at “around 60 miles per hour” because it is difficult to describe speed without offering an estimate.
• A witness may state that someone appeared “drunk” based on their physical observations, such as slurred speech and unsteady walking.
  However, witnesses cannot make legal conclusions. For example, a witness cannot say that a driver was driving “too fast” or “negligently”—those determinations are for the court to make.

Question 12

When can a witness provide an opinion based on facts personally perceived, and why is this allowed?

Answer 12

A witness may provide an opinion based on facts they personally perceived under s 3(2) of the Civil Evidence Act 1972. This is allowed because some factual situations are difficult to describe without including an element of opinion, especially when a witness observes something firsthand.

For example:

• A witness to a road traffic accident may estimate the speed of a vehicle they saw, stating, “The car was going about 60 miles per hour.” This opinion is based on their observation of the car’s speed.
• A witness to an assault may state that the attacker “seemed drunk,” based on signs like slurred speech, glazed eyes, and the smell of alcohol.
  In both examples, the opinion helps convey the facts the witness observed, but the witness is not allowed to make broader conclusions, such as stating that the driver was negligent or that the attacker was incapable of controlling their actions.

Question 13

What is hearsay evidence, and how is it defined under the Civil Evidence Act 1995?

Answer 13

Hearsay evidence is defined in s 1(2) of the Civil Evidence Act 1995 as a statement that:

1. Was made outside of court.
2. Is repeated in court.
3. Is used to prove the truth of the matter stated.

Hearsay can be oral or written, and it may be presented in court through a witness repeating the statement or through a document. The key factor that makes evidence hearsay is the purpose of repeating the statement: if the statement is repeated to prove the truth of what was said, it is hearsay.

For example:

• If a witness testifies that after a car accident, the other driver said, “I didn’t see you!” and this is repeated to prove that the driver didn’t see the other vehicle, it is hearsay.
• If a written statement made by a witness who is not present in court is used to prove a fact, it is hearsay.

Question 14

What is the difference between first-hand and multiple hearsay, and why does the number of repetitions matter?

Answer 14

• First-hand hearsay occurs when a witness repeats something they were told directly by another person to prove the truth of that statement. For example, Shona testifies that Padraig told her something, and Shona repeats this to prove that Padraig’s statement was true.
• Multiple hearsay involves a longer chain of communication. For example, Shona repeats something Padraig told her, which Padraig heard from Himesh. The further the statement travels, the more opportunities for miscommunication or inaccuracy.

The number of repetitions matters because each retelling increases the risk of misinterpretation, exaggeration, or error. The more times a statement is repeated, the less reliable it becomes, which is why multiple hearsay is often viewed with skepticism.

Question 15

What are the procedural requirements for using hearsay evidence in civil proceedings, and what options does the opposing party have?

Answer 15

Hearsay evidence is admissible in civil proceedings under s 1(1) of the Civil Evidence Act 1995, but it must comply with specific notice requirements under s 2 and CPR Part 33.

• If a party intends to call a witness whose statement contains hearsay, they must serve the witness statement on the other party.
• The opposing party can then:

1. Request the court to require the maker of the original statement to attend for cross-examination.
2. Serve a notice of intention to challenge the credibility of the hearsay evidence.

• If the party does not intend to call the witness to give oral evidence, the entire witness statement becomes hearsay. In this case, the party must serve a hearsay notice, explaining why the witness will not attend and providing advance warning to the other party.

Failure to comply with these requirements does not make the hearsay inadmissible, but it can affect the weight the court gives to the evidence and may result in costs consequences.

Question 16

How does the court assess the weight of hearsay evidence, and what factors are considered under s 4 of the Civil Evidence Act 1995?

Answer 16

Although hearsay evidence is admissible, the court must assess how much weight to give it. Hearsay is often considered second-best evidence because it was not made under oath, and the maker cannot be cross-examined.
Under s 4 of the Civil Evidence Act 1995, the court must consider:

1. Why wasn’t the original speaker called? If the person who made the statement is unavailable (e.g., deceased or abroad), the hearsay may be more reliable.
2. Was the statement made contemporaneously? A statement made immediately after the events in question is generally more reliable than one made later.
3. Is there multiple hearsay? The more layers of hearsay, the greater the risk of inaccuracy.
4. Did the original speaker have a motive to misrepresent? If the speaker had a reason to lie or distort the facts, the statement is less trustworthy.
5. Was the statement edited or made with others? Collaboration in making the statement may suggest collusion.

The judge also considers whether the other party had enough time to respond to the hearsay evidence. The court weighs these factors to determine how reliable and probative the hearsay evidence is.

Question 17

How do you determine whether evidence is hearsay and whether it is admissible in civil proceedings?

Answer 17

To determine if a statement is hearsay, you must answer yes to all three of the following questions:

1. Was the statement made outside of court?
2. Is it being repeated in court?
3. Is the purpose of repeating the statement to prove the truth of what was said?

If all three questions are answered yes, then the evidence qualifies as hearsay.

Admissibility of Hearsay Evidence:
Hearsay evidence is admissible provided that:

• The evidence is relevant to the issues in the case.
• There is no other reason for excluding it (e.g., it is not inadmissible due to being an opinion not based on facts personally perceived).

Once deemed admissible, the party relying on hearsay evidence must:

• Check the notice requirements under s 2 of the Civil Evidence Act 1995.
• Be aware that the opponent may attack the weight of the hearsay evidence, and the court will assess this using the guidelines found in s 4 of the Civil Evidence Act 1995. These guidelines help the court determine how much weight to give the evidence based on factors like the availability of the original witness and the reliability of the statement.

If the answer to any of the initial three questions is no, then the evidence is not hearsay but could still be relevant and admissible in the proceedings, depending on other factors.

Question 18

What is the significance of expert evidence in civil proceedings, and how does the court control its use under Part 35 of the CPR?

Answer 18

Expert evidence is often crucial to the outcome of civil proceedings, particularly when the case involves technical matters beyond the understanding of laypersons, such as the valuation of damages, the breach of a contract, or professional standards.
For example:

• A surveyor might be called upon in a dispute involving defective building work.
• An accountant might be needed to assess loss of profits in a business-related case.

However, the court controls the use of expert evidence under Part 35 of the Civil Procedure Rules (CPR). This control ensures that expert evidence is only used when it is reasonably required to resolve the issues. The court can:

• Refuse to allow any expert evidence at all.
• Limit the number of experts a party can call.
• Require the parties to agree on using a single joint expert (SJE).
• Restrict expert evidence to written reports instead of oral testimony.

The court’s permission must be obtained before a party can call an expert. This permission is typically addressed at the directions stage during case management, where the court assesses factors such as the value of the claim, proportionality, and the costs of obtaining the expert evidence.

Question 19

What factors does the court consider when deciding whether expert evidence is necessary in a civil case?

Answer 19

The court must ensure that expert evidence is necessary and proportional to the issues being resolved. It does not automatically allow expert evidence, but instead considers several important factors before granting permission for its use:

• The value of the claim: The higher the value, the more likely the court will permit expert evidence, as the potential consequences of the case are more significant.
• Proportionality: The court must balance the costs of obtaining expert evidence with the importance and complexity of the issue. Expert evidence must be cost-effective, especially in lower-value claims.
• The likely costs of the expert: This includes considering the fees for the expert’s report, any testing or investigations they need to perform, and the costs associated with the expert appearing at trial.
• The field of expertise: The court must ensure that the expert’s field is relevant to the issue in dispute. For example, an accountant is suitable for financial disputes, but not for issues involving medical malpractice.
• Expert’s qualifications: The court will examine whether the proposed expert has the knowledge and experience necessary to provide a reliable opinion on the specific issue.

Additionally, the court may require:
* The name of the expert (if practicable).
* The issues the expert will address in their report.

If these factors align, the court will grant permission for the expert to provide evidence. If the evidence is unnecessary or the costs are disproportionate, the court may deny the application.

Question 20

What is the expert’s duty under Part 35 of the CPR, and how does it differ from their obligations to the instructing party?

Answer 20

Under Part 35, the expert’s primary duty is to assist the court by providing objective, unbiased opinions within their area of expertise. This duty is paramount and overrides any duty owed to the party who instructs the expert.

• Objective opinions: The expert must remain neutral and provide their professional opinion based solely on the facts and their expertise, without advocating for the instructing party.
• Unbiased: The expert must not allow their judgment to be influenced by the desires or preferences of the party who pays them.
  The expert’s duty to the court requires them to:
• Act as a neutral advisor, regardless of which party instructs them.
• Avoid assuming the role of an advocate. The expert’s role is to explain their findings to the court, not to argue for a party’s position.
  However, the expert still has obligations to the instructing party, such as providing their report with reasonable care and skill, as required by s 13 of the Supply of Goods and Services Act 1982.

The expert must act professionally and diligently while considering the facts of the case, but this duty is secondary to their duty to the court. The court relies on the expert to provide clear, truthful, and independent analysis.

Question 21

What is a Single Joint Expert (SJE), and in what circumstances might the court appoint one instead of allowing each party to instruct their own expert?

Answer 21

A Single Joint Expert (SJE) is an expert jointly instructed by both parties to provide evidence on a specific issue in dispute. This is often done to save time and costs and to reduce the possibility of conflicting expert opinions. The court will consider appointing an SJE based on several factors:

• Proportionality: If appointing separate experts for each party would be disproportionate to the value or complexity of the case, an SJE is more appropriate.
• Cost-effectiveness: Using an SJE can help resolve the issue more quickly and at a lower cost, especially in less complex cases where the parties do not need their own individual experts.
• Range of opinion: If the issue in dispute does not involve a wide range of possible expert opinions, one expert may be sufficient to provide an authoritative opinion.
• Fast track cases: In fast track cases, the court will usually order an SJE unless there is a good reason not to. The SJE will produce a written report sent to both parties simultaneously, and the costs of the expert are shared equally.

Oral testimony from the SJE is rare in fast track cases, as the court typically relies on the written report.
If the parties cannot agree on an SJE, the court may select one from a list provided by the parties. This ensures fairness in the selection process.

Question 22

What procedures are followed when each party instructs separate experts in multi-track cases, and how does the court manage expert evidence in such cases?

Answer 22

In multi-track cases, it is more common for each party to instruct their own expert due to the complexity of the issues, the importance of the case, and the amount in dispute. The court, however, closely manages the process to streamline the trial and minimize unnecessary costs. Procedures include:

• Exchange of reports: The court will set a deadline for the exchange of expert reports, allowing both parties to see the other’s expert evidence in advance of the trial.
• Written questions: After receiving the reports, each party may submit written questions to the other party’s expert within 28 days. These questions seek clarification on points in the report. The expert’s answers become part of their report and are considered evidence.
• Expert discussions: The court may order a without prejudice discussion between the experts, typically without the involvement of the parties or their lawyers. The purpose of the discussion is to:
• Identify the extent of agreement between the experts.
• Highlight any points of disagreement and the reasons for these.
• Suggest potential actions to resolve outstanding issues.
• Joint statement: After the discussion, the experts must produce a joint statement for the court, identifying the points on which they agree and disagree, along with the reasons for each disagreement.
• Oral evidence: The judge will decide whether the experts will be permitted to give oral evidence at trial. Although written reports are the primary form of expert evidence, oral testimony is more common in multi-track cases due to their complexity. The experts may be cross-examined in court to clarify and test their opinions.

Question 23

What are the required contents and formalities of an expert’s report under Part 35, and why are these formalities important?

Answer 23

An expert’s report must comply with strict formalities under Part 35 of the CPR to ensure that it is thorough, professional, and transparent. These formalities help the court assess the credibility and reliability of the expert’s opinion. The report must include:

• Addressed to the court: The report is written for the court, not the party who instructs the expert.
• Expert’s qualifications: The expert must provide details of their qualifications to establish their authority in the field.
• Literature/materials relied upon: The report must identify any literature, research, or material that the expert used to form their opinion.
• Facts and instructions: The expert must clearly state the facts they relied upon and the instructions they received. This transparency ensures that the court understands the basis of the expert’s opinion.
• Tests and experiments: If the expert conducted tests or experiments, the report must state who performed them, their qualifications, and whether the expert supervised the work.
• Range of opinion: The expert must summarize the range of professional opinions on the issue and explain why they adopted a particular view.
• Summary of conclusions: The expert must provide a clear summary of their conclusions.
• Statement of truth: The report must include a statement of truth, where the expert confirms that the facts and opinions expressed are accurate and represent their professional opinion.

Question 24

How is the use of expert evidence controlled and managed in civil proceedings under Part 35 of the CPR?

Answer 24

The use of expert evidence in civil proceedings is carefully regulated by the court under Part 35 of the Civil Procedure Rules (CPR). Expert evidence is often crucial to resolving technical or complex issues, but parties cannot freely use experts without court permission.

1. Directions for Experts:

• The court grants permission for the use of experts during case management or allocation stages.

2. Can a Party Always Use Experts?

• No. A party cannot call an expert without the court’s permission, which is typically granted based on proportionality, necessity, and the value of the claim.

3. Number of Experts:

• Fast track: The usual rule is the joint instruction of a Single Joint Expert (SJE). The expert will send their written report to both parties simultaneously, with the costs shared between the parties. The trial typically relies on the expert’s written report, and oral evidence is rarely allowed.
• Multi-track: The parties usually instruct separate experts. The procedure includes the simultaneous exchange of reports, followed by written questions that both experts must answer. These answers are considered part of their report. Oral evidence from experts is more likely to be allowed at trial.

4. Procedure for Multi-Track Cases:

• After reports are exchanged, experts answer written questions from the other side for clarification.
• The court may order a without prejudice discussion between the experts to narrow the issues, without the parties or their lawyers present. This discussion is not referenced at trial unless agreed.
• The experts must then produce a written joint statement, summarizing areas of agreement and disagreement, with explanations for each
• At trial, oral evidence is likely, allowing the experts to be cross-examined on their findings.

5. Duty of the Expert:

• The expert’s duty is to assist the court by providing objective, unbiased opinions on matters within their field of expertise. This duty overrides any obligation to the party who instructed them.