Evidence

Question 1

(1) What is meant by the ‘Legal Burden’?
(2) Who has the ‘Legal Burden’?
(3) What are the 2 main exceptions to rule in (2)?

Answer 1

(1) Produce sufficient EVIDENCE
(2) Claimant UNLESS e.g.
(a) Contributory negligence
(b) Part 20 counterclaim

Question 2

(1) What is a ‘Witness Statement’?
(2) What must it be verified by?

Answer 2

(1) WRITTEN statement containing the evidence a witness would be allowed to give ORALLY at TRIAL
(2) Statement of Truth

Question 3

(1) What must be done with a ‘Witness Statement’
(2) What is the effect if (1) is NOT done?
(3) What are the 2 exceptions to rule in (2)?

Answer 3

(1) EXCHANGED (other Party)
(2) Witness CANNOT speak at trial UNLESS
(a) Court permission
(b) Summary (used instead)

Question 4

What is the GENERAL rule on what evidence is admissible at trial?

Answer 4

RELEVANT evidence

Question 5

(1) What is the GENERAL rule over whether OPINION evidence is admissible
(2) What are the 2 exceptions to this?

Answer 5

(1) Opinion evidence NOT admissible UNLESS
(2)
(a) Perception of facts PERSONALLY RECEIVED
(b) Expert evidence

Question 6

Opinion evidence that is a witnesses ‘Perception of facts PERSONALLY RECEIVED’ can be admissible. Would the following be admissible under this:
(a) ‘D was travelling about 50 mph’
(b) ‘D was travelling too fast
(c) ‘D was too drunk to drive’
(d) ‘D was drunk’

Answer 6

(a) Yes
(b) No
(c) No
(d) Yes

Question 7

Opinion evidence that is ‘Expert’ evidence can be admissible. What is the condition of this?

Answer 7

Area of expertise

Question 8

What 3 part test to determine if ‘Hearsay Evidence’ is admissible in court?

Answer 8

(1) DEFINITION - Satisfy DEFINITION ‘Hearsay Evidence’
(2) TWO PART TEST - Satisfy TWO PART TEST of Admissibility
(3) NOTICE REQUIREMENT- Comply with NOTICE REQUIREMENT

Question 9

What is the definition of ‘Hearsay Evidence’?

Answer 9

(1) Statement made OUTSIDE OF COURT
(2) Repeated IN COURT
(3) Prove TRUTH of MATTER STATED

E.g. ‘‘Joshua said at the scene that the car was travelling at approximately 50 mph.’

Question 10

What is the ‘Two Part’ Test for the admissibility of ‘Hearsay Evidence’?

Answer 10

(1) RELEVANT and
(2) NOT OPINION EVIDENCE (unless 2 exceptions - (a) perception of facts PERSONALLY RECEIVED OR (b) Expert evidence apply)

Question 11

What is the ‘procedural requirement’ in order for a Party to rely on ‘Hearsay Evidence’ in court?

Answer 11

INFORM the other Party

Question 12

For a Party to rely on ‘Hearsay Evidence’ in court, they must give NOTICE to the other Party. How is this done in the following scenarios where the ‘Hearsay Evidence’ is contained within:

(1) Witness Statement + witness oral evidence (at trial)
(2) Witness Statement + witness NOT at trial
(3) NOT in Witness Statement

Answer 12

(1) NO NOTICE (notice given on ‘exchange of Witness Statement’
(2) INFORMAL NOTICE
(iii) FORMAL NOTICE (‘Notice of Intention’)

Question 13

(1) After a ‘Notice of Intention’ to rely on ‘Hearsay Evidence’ is served on the on the other side, what is one key way they can respond at trial?

(2) What is a key factor that will likely lead to a court giving less weight to the evidence?

Answer 13

(1) Challenge WEIGHT given to evidence
(2) Multiple-hearsay

Question 14

For the Intermediate track, what is the general rule for:
(1) ORAL Expert Evidence
(2) WRITTEN Expert Evidence

Answer 14

1) 2 PER PARTY
(2) NO LIMIT

Question 15

For the Fast track, what is the general rule for
(1) ORAL Expert Evidence
(2) WRITTEN Expert Evidence

Answer 15

(1) PER PARTY- 1 expert witness per field AND Max 2 fields

(2) No limit

Question 16

Is it likely the court will order a ‘Single Joint Expert’ in a case allocated to:
(1) Fast track
(2) Intermediate track
(3) Multi-track

Answer 16

1) Yes
(2) Yes
(3) No

Question 17

(1) What is the extent of Expert Evidence?
(2) Who is the overriding duty of Experts to?

Answer 17

(1) ‘REASONABLY REQUIRED’ to resolve proceedings
(2) Overriding duty to court (e.g. can’t amend report to make more favourable to a party)

Question 18

What is required for a Party to call an Expert?

Answer 18

Court’s permission

Question 19

The Court’s permission is required to call an Expert. When does this typically take place for:
(a) Fast Track
(b) Intermediate Track
(c) Multi-track

Answer 19

(a) Directions stage
(b) EITHER Directions stage OR CMC
(c) CMC

Question 20

What document do Experts produce as their evidence?

Answer 20

Expert Report

Question 21

If a SINGLE JOINT EXPERT is ordered (e.g. in fast track):
(1) How are the ‘Experts report’ sent to the Parties?
(2) How are the COSTS paid?
(3) What type of EVIDENCE can they give at TRIAL?

Answer 21

(1) SIMULTANEOUSLY
(2) Costs shared =
(3) WRITTEN evidence (NOT oral)

Question 22

If a Party disagrees with the ‘Experts’ Report’ from a SINGLE JOINT EXPERT, what 3 steps can they take?

Answer 22

(1) SECOND EXPERT REPORT (BUT only rely on with court permission)
(2) CROSS-EXAMINE at trial
(3) Send SECOND EXPERT REPORT to SJE

Question 23

If SEPARATE EXPERTS are ordered (e.g. multi-track), is the 5 step procedure up to Trial?

Answer 23

(1) EXCHANGE of ‘Experts’ Reports’ - Simultaneously
(2) QUESTIONS - written questions to experts from other party + treated as part of report
(3) DISCUSSIONS - ‘without prejudice’ discussions between experts - narrow down issues
(4) JOINT WRITTEN STATEMENT STATEMENT - areas agreement & disagreement
(5) ORAL EVIDENCE at Trial - likely to be given

Question 24

What type of evidence is likely to be given at Trial by:
(1) Single Joint Expert
(2) Separate Experts

Answer 24

(1) Written ONLY
(2) Likely Oral