Evidence Flashcards
What is witness evidence?
Direct evidence by a witness of what they have perceived with their own senses.
What is expert evidence?
Evidence from a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.
Facts in issue must be proven by…
admissible evidence.
Three types of admissible evidence?
- Documents.
- Witness evidence (fact and expert).
- Real evidence.
What is a witness statement?
A written statement signed by a person which contains the evidence which that person would be allowed to give orally. Exchanged with the other parties to help facilitate settlement.
Usually evidence in chief, and then the witness will be asked to confirm the truth of the contents in the witness box.
What happens if a witness statement is not served in time?
The witness cannot be called to give oral evidence unless the court gives permission.
How can the time for serving witness statements be extended?
Parties can agree extensions of up to 28 days in writing for serving - provided this doesn’t put a hearing at risk.
If it will affect a subsequent key date, apply to court under CPR3.
If no extension is agreed and witness statements are served late, application will need to be made for relief from sanction (sanction being that witness cannot be called).
Can witnesses orally amplify their witness statements during evidence in chief?
Yes with courts permission can amplify/give evidence relating to new matters that have arisen since service of statement. Court unlikely to allow evidence that would eg. remedy deficiencies, or act as a late and unjustified change of tack - as this would not be compatible with the overriding objective.
What are the two situations where opinion evidence is permissible?
Perceived facts and expert opinion.
Does a witness statement need a statement of truth?
Yes - to be signed by the witness themselves.
What is needed in addition for a witness statement prepared for an interim hearing?
One extra paragraph at the beginning confirming the reasons for the statement - after the information and belief paragraph.
One extra paragraph at the end of the statement before the statement of truth, confirming what they would like the court to do in relation to that interim application.
What is an affidavit?
Written statement of evidence sworn before a person authorised to administer affidavits, rather than verified by a statement of truth.
What are the extra rules for witness statements at trial in the business and property courts?
- The statement must identify what documents the witness has referred to for the purpose of providing the evidence set out in their witness statement.
- As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case.
- The statement must include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.
What is the general rule on heresy in civil courts?
It is admissible, but as indirect evidence is inherently less reliable than direct.
What is heresay?
An oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated.
What are the special rules on heresay?
Should give notice to the other party that it intends to rely on heresay.
How should notice to rely on heresay evidence be given?
IF the evidence is in a witness statement of a person who will give oral evidence at trial, no formal notice is required.
If the evidence is in a witness statement of a person who is not giving oral evidence at trial, no formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons.
In other cases, formal notice must be given to the other party identifying the heresay, stating that the party wishes to rely on it and the reason why the witness will not be called.
What is no notice of hearsay is given?
Evidence will still be admissible, but weight court attaches to it is likely to be less, and offending party may be penalised in costs.
What are a party’s options on receipt of a notice of intention to rely on hearsay?
- Request particulars of hearsay.
- Call for cross-examination.
- Challenge the weight of hearsay evidence.
- Attack credibility of an absent witness.
How are convictions as evidence in civil proceedings dealt with?
The fact that a person has been convicted of an offence in a UK court is admissible in evidence to prove that he committed the offence.
This does not mean that a conviction ends the issue within the civil proceedings. Instead, a person wanting to prove the contrary will have the burden of proving that the person convicted did not commit the offence on a balance of probabilities.
What are the duties of the court in relation to the use of expert evidence?
Duty to restrict expert evidence to that which is reasonably required to resolve proceedings. Need to get courts permission to adduce expert evidence at trial. Parties can instruct experts, but needs courts permission to rely on their evidence in proceedings.
In the fast track, what are the limitations for oral expert evidence?
One expert per party in relation to any expert field, and expert evidence in two expert fields.
What do parties need to do when applying for permission to use expert evidence?
Provide an estimate of the costs and identify the field in which expert evidence is required and name of the proposed expert if practicable.
How are experts instructed?
In a letter - which is not privileged from inspection, although disclosure and inspection of specific documents, or cross examination of the expert on the letter of instruction, will not usually be required.
In what form does an expert give evidence?
In a written report unless courts direct otherwise. these must be exchanged with the other side to be used at trial.
Rules on questions to experts
Questions can only be put once
* Questions should generally only be for the purposes of clarifying the report
* Questions must be submitted to the expert within 28 days of service of the report
* A copy of the questions must be sent to the other party
There is no time limit within which the expert must answer questions unless ordered by the court
* Answers to the questions become part of the report
* If the expert does not answer, the court can order that the party who instructed the expert cannot rely on their evidence and or cannot recover the expert’s fees from the other party
Questions by experts to the court
Experts may submit written requests for direction to the court to help them carry out their task (CPR 35.14). Unless the court orders otherwise, the expert must:
(a) provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court; and
(b) provide a copy to all other parties at least 4 days before filing it at court.
The court, when it gives directions, can direct that a party also be served with a copy of the directions.
Rules on discussion between experts?
- Should discuss and hopefully reach an agreed opinion.
- not binding on parties who do not expressly agree to be bound, but should probably agree to avoid cost consequences.
-parties and legal help should not attend expert’s discussions. If lawyers do attend, shouldn’t intervene except to answer questions or advise on law.
-A party who thinks their expert has acted incompetently can try and argue that agreement should not be accepted by court.
What is hot-tubbing?
some or all the evidence of experts from similar disciplines is given concurrently.
What are the options for a party who received an unfavourable report from an expert instructed by them or a single joint expert?
- Put questions to expert.
- Seek advice from another expert.
- if there is not a direction for the expert to give oral evidence, seek this direction from court.
