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Civil Litigation > Evidence > Flashcards

Evidence Flashcards

1
Q

What is evidence of fact?

A

Evidence of fact refers to witness and witness statements used to prove facts in issue.

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2
Q

What are the three types of admissible evidence?

A
  1. Documents 2. Witness evidence 3. Real evidence
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3
Q

What is the process of disclosure?

A

Disclosure is the process by which each party informs the other of relevant documents they possess.

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4
Q

What are the two types of witness evidence?

A
  1. Witnesses of fact 2. Expert witnesses
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5
Q

What is a witness statement?

A

A witness statement is a written statement signed by a person containing the evidence they would give orally.

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6
Q

What is the purpose of exchanging witness statements?

A

Exchanging witness statements saves time and costs at trial and facilitates settlement.

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7
Q

What is the principal purpose of a witness’s attendance at trial?

A

The principal purpose is to allow the other party’s counsel to cross-examine the witness.

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8
Q

What happens if a witness statement is not served on time?

A

If not served within the specified time, the witness may not be called to give oral evidence unless the court permits.

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9
Q

What is the general rule regarding opinion evidence?

A

The general rule is that opinions of witnesses are not admissible; they are confined to stating facts.

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10
Q

What are the exceptions to the inadmissibility of opinion evidence?

A
  1. Perceived facts 2. Expert opinion
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11
Q

What must a witness statement include?

A

A witness statement must be in the witness’s own words and cover every fact that needs to be proved.

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12
Q

What is required for a witness statement to be valid?

A

It must be verified by a statement of truth and signed by the witness.

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13
Q

What is the difference between witness statements for trial and interim hearings?

A

Witness statements for interim hearings include additional paragraphs confirming the reason for the statement and what the witness requests from the court.

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14
Q

What is the court’s power regarding evidence?

A

The court has the power to control evidence, including giving directions and excluding evidence.

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15
Q

What happens if a witness makes a false statement?

A

A witness making a false statement without honest belief may face contempt of court proceedings.

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16
Q

What is an affidavit?

A

An affidavit is a form of evidence of fact given instead of a witness statement when required by the court or rules.

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17
Q

What is required for evidence of fact in civil proceedings?

A

Witness statements are the main form of evidence of fact, but evidence must be given by affidavit if required by the court or rule.

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18
Q

What is an affidavit?

A

An affidavit is a written statement of evidence sworn before a person authorized to administer affidavits.

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19
Q

What is a deponent?

A

A person who gives evidence by affidavit is called a deponent.

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20
Q

What must an affidavit include?

A

An affidavit must include a jurat, be signed by all deponents, and contain the full address of the person before whom it was sworn.

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21
Q

What is hearsay evidence?

A

Hearsay is indirect evidence made out of court, which is being adduced in court to prove the truth of the matter stated.

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22
Q

Is hearsay evidence admissible in civil proceedings?

A

Yes, hearsay evidence is admissible in civil proceedings under the Civil Evidence Act 1995.

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23
Q

What must a party do if it intends to rely on hearsay evidence at trial?

A

The party must give notice to the other party of its intention to rely on hearsay evidence.

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24
Q

What are the notice requirements for hearsay evidence?

A

If the evidence is in a witness statement of a person who will give oral evidence, no formal notice is required.

25
Q

What can a party do if hearsay evidence is presented without calling the original witness?

A

The other party may request to cross-examine the absent witness with the court’s leave.

26
Q

What is the significance of a conviction in civil proceedings?

A

A conviction in a UK court is admissible to prove that the person committed the offence, unless the contrary is proved.

27
Q

What happens if notice of hearsay is not given?

A

The evidence will still be admissible, but the court may attach less weight to it.

28
Q

What are the special rules regarding plans, photographs, and models as evidence?

A

Notice must be given for evidence not contained in a witness statement or expert’s report; otherwise, it will not be receivable at trial.

29
Q

What is expert evidence?

A

Expert evidence is provided by a highly skilled or knowledgeable individual who advises the court impartially on matters within their expertise.

30
Q

What are the two types of witnesses?

A
  1. Witnesses of fact: provide direct evidence based on their own perceptions.
  2. Expert witnesses: provide evidence of opinion within their expertise.
31
Q

Is a court order required for expert evidence?

A

Yes, a court order is required if a party wishes to adduce expert evidence at trial.

32
Q

What rules govern the submission of expert evidence?

A

The rules for submitting expert evidence are outlined in CPR 35 and 35 PD.

33
Q

What is the court’s duty regarding expert evidence?

A

The court has a duty to restrict expert evidence to what is reasonably required to resolve the proceedings (CPR 35.1).

34
Q

What is a common misconception about instructing experts?

A

A common misconception is that the court’s permission is required to instruct an expert; however, parties can instruct as many experts as they like but need court permission to rely on their evidence.

35
Q

How does the court restrict expert evidence in small claims and fast track cases?

A

The court is more likely to restrict expert evidence in small claims and fast track cases, with specific exceptions.

36
Q

What must parties provide when applying for permission for expert evidence?

A

Parties must provide an estimate of costs and identify the field of expert evidence required, including the proposed expert’s name if practicable.

37
Q

What is the duty of an expert?

A

Experts have a duty to help the court on matters within their expertise, overriding any obligation to the party instructing them (CPR 35.3).

38
Q

What are the Ikarian Reefer Guidelines?

A

The Ikarian Reefer Guidelines outline the duties and responsibilities of experts, emphasizing independence and objectivity in their evidence.

39
Q

Are expert reports privileged from inspection?

A

The letter of instruction to an expert is not privileged from inspection, but the court will not require disclosure unless the instructions are deemed inaccurate or incomplete.

40
Q

What must an expert report include?

A

An expert report must include qualifications, material relied on, substance of facts, and a statement of compliance with the duty to the court (CPR 35.10).

41
Q

What happens if expert reports are not exchanged?

A

Failure to exchange expert reports as directed means the evidence cannot be used unless the court grants permission (CPR 35.13).

42
Q

What is a single joint expert?

A

A single joint expert is appointed by both parties to save costs, and the court can also direct the use of a single joint expert.

43
Q

What can parties do after exchanging expert reports?

A

Parties can put written questions to the other party’s expert or the single joint expert for clarification (CPR 35.6).

44
Q

What are the rules for discussions between experts?

A

The court can direct experts to discuss issues in dispute to identify and potentially reach an agreed opinion (CPR 35.12).

45
Q

What is ‘hot-tubbing’?

A

Hot-tubbing is when experts from similar disciplines give evidence concurrently on agreed issues, allowing the judge to ask questions directly.

46
Q

What options does a party have upon receiving an unfavorable expert report?

A

Options include questioning the expert, seeking permission for oral evidence, or consulting another expert for advice.

47
Q

What should a party do if they seek to call another expert?

A

A party must seek the court’s permission to call a different expert witness (CPR 35.4).

The court will often only allow this on the condition that the first report be disclosed to prevent ‘expert shopping’.

48
Q

What happens if a party’s expert advice differs substantially from expectations?

A

The party may seek permission to call another expert, but this can be difficult and costly.

If permission is not granted, the party can use the expert advisor to assist in preparing questions for cross-examination.

49
Q

What are the difficulties in obtaining permission for a second expert’s report?

A

There may be considerable difficulties, possible cost sanctions, and/or loss of credibility.

The court should only permit a second expert in exceptional circumstances.

50
Q

What happens if a party decides not to rely on its expert’s report after disclosure?

A

The other party may still rely on the report at trial (CPR 35.11).

51
Q

What is the duty of experts in court?

A

Experts have a duty to help the court on matters within their own expertise.

52
Q

Are letters of instruction to an expert privileged?

A

The letter of instruction is not privileged but will not normally be seen by the other side.

53
Q

How is an expert’s opinion presented?

A

An expert’s opinion will be in a written report, which is exchanged with the other side.

54
Q

What is a single joint expert?

A

A single joint expert can be used instead of each party instructing their own expert.

55
Q

What can parties do after the exchange of expert reports?

A

Parties can put written questions to the other party’s expert or a single joint expert, and the answers form part of the expert’s report.

56
Q

Can experts hold discussions?

A

Yes, experts can hold discussions to narrow the issues in dispute.

57
Q

Can parties call experts to give oral evidence at trial?

A

Yes, parties may be given permission to call experts to give oral evidence at trial.

In small claims track and fast track cases, the court will only order the expert to appear at trial to give oral evidence if it is in the interests of justice to do so

58
Q

What should a party consider if an expert’s report is unfavourable?

A

The party should be thinking about the possibility of settlement.

Civil Litigation (9 decks)

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