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(FLK2) Civil Litigation and Dispute Resolution > Evidence > Flashcards

Evidence Flashcards

1
Q

What are the Types of Evidence used in Civil Litigation?

A
  • Real Evidence.
  • Witness Testimony.
  • Documentary Evidence.
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2
Q

What are the Two Types of Witnesses?

A
  • Witness of Fact.
  • Expert Witness.
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3
Q

What are the Court’s General Powers on Evidence?

A

Directing Presentation of Evidence:

  • The Court specifies:
    • The Issues needing Evidence;
    • The nature of Evidence needed; and
    • How it should be presented.

Excluding or Limiting Evidence:

  • The Court may exclude technically-admissible Evidence; and
  • May restrict the extent of Cross-Examination to prevent delay or Undue Influence.
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4
Q

What is the General Rule on Witness Testimony?

A

If it is necessary to prove a Fact in Issue, it will be given Orally at Trial.

Video Link is permissible where necessary.

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5
Q

What is a Witness Statement?

A
  • A written, signed declaration containing Evidence a Witness would otherwise give Orally.
  • This serves as the Witness’s Evidence in Chief, and at Trial, they will be asked to confirm its truth.

Witness Statements are always given by Natural Persons.

Witness Statements are used as accelerants, enabling the Parties to assess Evidence in advance and potentially Settle early.

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6
Q

What is the Content of a Witness Statement?

A
  • Legal Argument: Identify the legal argument the Statement supports.
  • Legal Basis: Explain the relevant legal foundation.
  • Supporting Facts: Detail the facts within the Witness’s knowledge that substantiate the legal argument.

Statements are usually drafted by Lawyers but should remain in the Witness’s own words, as required for authenticity.

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7
Q

What is the Structure of a Witness Statement?

A

1 — Heading:

  • Endorsement.
  • Case Number.
  • Court Name and Division.
  • Case Name with Claimant and Defendant.
  • Witness ID.

2 — Endorsement:

  • Reliant Party.
  • Witness Name and Initials.
  • Statement Number.
  • Exhibits Reference
  • Date of Signautre.
  • Date of Translation (if applicable).

3 —Opening Paragraphs:

  • Witness’s Full name.
  • Home Address or Business Address, if in a business capacity.
  • Occupation.
  • Role in the Case.
  • Method of Statement Preparation.

4 — Information and Belief Paragraph:

  • Indication of source(s) of information for the Statement.

5 —Substantive Content:

  • Confirmation of the reason for the Statement (Interim Only).
  • Witness’s Testimony in its own words.
  • Referenced Documents must be verified, clearly identified, and remain as separate Exhibits.
  • Confirmation of intended finding by the Court (Interim Only).

6— Statement of Truth.

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8
Q

What are the Further Requirements for Trial Witness Statements in the Business and Property Courts?

A

Criteria for Applicability:

  • The Statement is intended for Trial use.
  • The Trial is scheduled in the Business and Property Courts.

Further Requirements:

  • Document References: The Witness must identify any Documents they referred to when preparing the Statement.
  • Signed Confirmation by Witness: The Witness must confirm that they understand the Statement’s purpose is not to argue the Case or review the Documents.
  • Confirmation from an Advisor: A legal representative must deem the Statement compliant and confirm the Witness had the rules explained to them.
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9
Q

Which Applications require an Affidavit rather than a Witness Statement?

A
  • Search Orders.
  • Freezing Orders.
  • Without-Notice Injunctions more generally.
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10
Q

What are the Structural Differences between an Affidavit and a Witness Statement?

A

Affidavits conclude with:

  • An Oath, not a Statement of Truth; and
  • A Jurat to authenticate the Document, which:
    • All Deponents must sign; and
    • The Oath Administrator must sign, with their name, qualification, and full address printed beneath.

The Jurat follows directly after the Affidavit’s Text, never on a separate page.

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11
Q

What governs the Exchange of Witness Statements?

A

Court Directions, which will address such things as:

  • The deadline for Exchange;
  • The Issues for Witness Evidence; and
  • Any limitations on length or number of Statements.

Failure to promtply serve generally prohibits calling the Witness at Trial without the Court’s permission.

The Deadline is usually some point after Disclosure and Inspection.

Filing at Court is uncommon unless explicitly ordered, but Witness Statements will be included in Trial Bundles.

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12
Q

How can the Deadline for Exchanging Witness Statements be extended?

A

Mutual Agreement:

  • The Parties may agree a 28-day extension.

Court Application:

  • If the Extension may impact a trial date or if agreement is impossible, formal approval is necessary.

Application for Relief (See Denton for the Test):

  • In deciding whether to grant Relief for a late submission, the Court will consider:
    • The OO.
    • Supporting Evidence.
    • All relevant circumstances.
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13
Q

When will the Court permit a Witness to Amplify a Witness Statement?

A
  • New issues concerning the Statement’s contents have arisen since service and require Oral Evidence.
  • The Court will not permit Amplification if it effectively serves as a late, unjustified change of direction.
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14
Q

How does Witness Testimony differ in Interrim Applications?

A
  • Written Statements are used by default, and Live Testimony is not mandated.
  • In rare cases, Cross-Examiantion may be permitted.

The General Rule is that any Fact which needs to proven in the Application, but not for the Trial, must be proved in writing.

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15
Q

When may a Witness give Opinion Evidence?

A
  • They are an Expert providing Expert Evidence.
  • The Opinion is a shorthand for a sensory experience or a perceived fact based on common knowledge.

Otherwise, Witness Testimony must be strictly factual.

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16
Q

Is Hearsay admissible?

A
  • Yes, but it is treated more cautiously given its lesser reliability.
  • The Court will always prefer Direct Evidence where possible.
17
Q

What are the Procedural Safeguards for Hearsay?

A

Requirement to Give Notice:

  • The Reliant Party must give Notice to the Counterparty, though the requirements differ based on the Context.
  • Failure to Notify does not render the Evidence inadmissible, but it does decrease its weight and may incur cost penalties.

Witness Statement of a Testifying Witness:

  • No Actual Notice is needed. Service of the Witness Statement constitutes Constructive Notice.

Witness Statement of a Non-Testifying Witness:

  • No Actual Notice is needed, but the Counterparty must be told that the Witness will not attend and why not.

All Other Contexts:

  • Actual Notice is needed, declaring:
    • The Hearsay;
    • The intent to rely thereon; and
    • The reasons why the Witness will not attend.
18
Q

How can a Counterparty respond a Hearsay Notice?

A

Request Particulars of Hearsay:

  • Request further, reasonable particulars of the Hearsay to enable an adequate response.

Call for Cross-Examination:

  • Apply to Court for permission to Cross-Examine the Maker, even if it will not be called by the Reliant Party.
  • Deadline, 14 days of Notice.

Challenge the Weight of Hearsay Evidence:

  • Challenge the Hearsay’s evidential weight based on:
    • The occcurrence of Multiple Hearsay.
    • The practicality and reasonableness of calling the Maker.
    • The Statement’s timing, particularly if contemporaneous with relevant events.

Attack Credibility of an Absent Witness:

  • Undermine the Maker’s credibility at Trial through Evidence of contradictions or previous inconsistencies.
  • The Counterparty must Notify the Reliant Party of its intention within 14 days of Notice.
19
Q

What are the Special Forms of Hearsay in Civil Litigation?

A

Plans, Models, and Photographs.

  • If not included in a Witness Statement or Expert Report, or not given Orally at Trial, they require Special Notice.
  • Failure to give Special Notice may render them inadmissible.
20
Q

Are Previous Criminal Convictions admissible as Evidence in Civil Proceedings?

A
  • Yes, but only if it is Subsisting and relevant to the Case.
  • Such Evidence creates a Reubttable Presumption of Guilt, and related Documents are admissible as Proof of the Conviction.

A Conviction is Subsisting if it is not Spent or Expired.

21
Q

What is an Expert Advisor?

A
22
Q

Can a Party volitionally adduce Expert Evidence?

A
  • No. A Court Order is required.
  • Permission should be requested in the Directions Questionnaire, wherein the Party:
    • Provides a Cost estimate; and
    • Identifies the field(s) in which expertise is required.

If practicable, the Party should also include the name of any Experts it intends to rely on. However, this can be problematic, because if issues arise therewith, it will have to request permission anew to use substitute Experts.

23
Q

What is the Central Duty of an Expert Witness?

A

To assist the Court on matters within their expertise, overriding any obligations to the Instructing Party.

24
Q

What are the Civil Duties of Expert Witnesses?

A
  • Independence: Experts should provide objective, unbiased opinions.
  • Transparency: Any Documents or Items referenced in Expert Reports must be Disclosed to the Counterparty.
  • Full Account of Opinion: Experts must state the facts or assumptions underlying their Opinions and consider all relevant material.
  • Disclosure of Changes: Experts must must promptly inform the Court and Parties if they change their views after Reports are exchanged.
  • Adherence to Scope of Expertise: Experts should identify matters beyond their expertise or based on insufficient data and refuse to comment thereon.
  • Exchange of Special Forms of Hearsay: Such materials must be provided to the Counterparty contemporaneously at Exchange.
25
Q

Are Letters of Instruction to Experts Privileged?

A

No, and the Court may Inspect them if the Expert Report seems inaccurate or incomplete.

26
Q

What are the Structural Requirements of an Expert Report?

A
  • Addressed to the Court: The Report must be addressed to the Court.
  • Expert’s Qualifications: The Report must include details of the Expert’s qualifications.
  • Inclusion of Reference Material: The Report must include any data, documents, or materials used by the Expert to form their opinion.
  • Substance of Relevant Facts and Instructions: The Report must disclose all facts and instructions received by the Expert that influenced their Opinions.
  • Distinction of Facts Known Personally: The Report must clarify which facts are from the Expert’s direct knowledge against those obtained from other sources.
  • Details of Tests and Experiments: The Report must specify who conducted any tests, detailing their qualifications and supervision by the Expert.
  • Range of Opinions: The Report must summarise the range of professional opinions where appropriate and explain the position they adopt in reference thereto.
  • Summary of Conclusions: The Report must clearly and concisely summarise the Expert’s conclusions.
  • Qualifications on Opinion: The Report must explicitly state any caveats or qualifications to the Expert’s opinion.
  • Statement of Compliance: The Report must include a statement confirming the Expert’s understanding of its duties to the Court and adherence to legal standards.
27
Q

Are the Drafts of an Expert Report Privileged?

A

Yes, under Litigation Privilege, but the Final Draft is not.

28
Q

When must Expert Repots be Exchanged?

A
  • As per the Court’s Directions.
  • Failure to comply therewith renders the Report inadmissible.
29
Q

If a Single Joint Expert is required, but the Parties cannot agree on whom to use, what will be done?

A

The Court will select an Expert from an agreed list of candidates.

30
Q

Once Reports are Exchanged, are the Parties entitled to Question the Respective Experts?

A

Yes, but with the following caveats:

  • One-Shot Rule: Parties are only allowed to submit questions once.
  • Purpose of Clarification: Questions must primarily seek to clarify aspects of the Report, not to challenge or expand upon its conclusions.
  • 28-Day Deadline: Questions must be submitted within 28 days of Service.
  • Copying in the Counterparty: A copy of the questions must be sent to the Counterparty.
  • No Time Limit for Responses: The Expert need not respond within a specific timeframe barring a Court Order.
  • Integration of Responses: Answers to the questions are considered an extension of the Report.
  • Consequences for Non-Compliance: If the Expert does not respond to questions, the Court may prevent:
    • Reliance on the Report; or
    • Recovery of Expert Costs from the Counterparty.
31
Q

May Experts request Directions from the Court?

A

Yes, but with the following requirements:

  • Notice to the Instructing Party: A copy of the proposed request must be Served at least 7 days before Filing.
  • Notice to All Other Parties: A copy of the proposed request must be Served at least 4 days before Filing.

If the Court makes an Order affecting the Expert:

  • The Instructing Party must Serve a copy on the Expert; but
  • If a Single-Joint Expert is used, the Claimant must Serve.
32
Q

What is a Court-Ordered Expert Discussion?

A
  • A Without-Prejudice discussion between Experts to resolve outstanding issues from the Reports.
  • The Court may specify which issues require resolution, and may require a Joint Statement thereon.
  • The Parties must not instruct their Experts to avoid reaching an Agreement.
  • Agreements are only Binding if the Parties consent, but refusal has adverse cost implications.
  • If a Party believes its Expert acted incompetently, it may challenge the Agreement and request to present further Expert Evidence in substitution.

Neither the Parties nor their Representatives attend these discussions unless agreed or ordered by the Court.

33
Q

When may an Expert be Called to give Live Evidence?

A

Chief Criterion:

  • At the Court’s discretion, when it serves the Interests of Justice.

Standard Operating Procedure:

  • Each side presents its Evidence, including Expert Testimony, sequentially (Claimant first).

Alternate Operating Procedure:

  • Issue-by-Issue: Each side presents evidence on specific issues in turn.
  • Hot-Tubbing: Experts from like disciplines Testify concurrently, with judicial leadership on questioning and issues to be discussed.
34
Q

What are an Instructing Party’s Options if an Expert Report is unfavourable?

A

Submit Questions:

  • Ask further questions to clarify the Report and strengthen your Case.

Request a Direction for Live Evidence:

  • Seek Court permission to call the Expert for Live Evidence to clarify the Report and strengthen your Case.

Seek a Second Opinion:

  • Elevate an Expert Advisor into an Expert Witness or seek Court permission to use another Expert.
  • Beware the Court will be very wary of Expert Shopping, and will make it a condition to disclose the First Report.

Settlement:

  • Cut your losses and settle the Case.
35
Q

What is a Notice to Admit Facts?

A

(FLK2) Civil Litigation and Dispute Resolution (17 decks)

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