evidence

Question 1

Who bears the legal burden of proof in a case, and what must be proved?

Answer 1

The legal burden of proof lies with the claimant. The claimant must prove each fact unless it is admitted by the opponent.

Question 2

when does the burden of proof shift to D?

Answer 2

if a defendant wishes to argue they should not have been convicted they must prove this, meaning that the legal burden has shifted on this point

Question 3

Under Part 32, what must a party do to call a witness?

Answer 3

A party must serve a witness statement on the other parties, outlining all the facts the witness would be allowed to give orally at trial.

Question 4

What happens if a witness statement is not served before trial?

Answer 4

The witness can only speak at trial with the court’s permission, and this is a rare occurrence.

Question 5

What is the maximum length of witness statements and summaries for intermediate track cases?

Answer 5

The total length of all permitted witness statements and summaries must not exceed 30 pages.

Question 6

What is a witness summary and when is it used?

Answer 6

A witness summary is used when it is difficult to obtain a full witness statement. It includes the witness’s name, address, evidence they can provide, or the issues they would be questioned on at trial.

Question 7

Is notice required to serve a witness summaries?

Answer 7

NO - a party can apply to the court without notice for an order to serve a written witness summary

Question 8

How should a witness statement be written?

Answer 8

It should be written in the first person, in the witness’s own words as far as possible, and follow the chronological sequence of events.

Question 9

What should a witness statement indicate regarding the source of information?

Answer 9

The witness must indicate which statements are made from their own knowledge and which are based on information and belief, naming the source if appropriate.

Question 10

Can a legal representative sign a witness statement on behalf of a witness?

Answer 10

No, unlike statements of case, a witness statement cannot be signed by a legal representative.

Question 11

What happens after a witness confirms their statement’s truth in court?

Answer 11

The witness will be called to give oral evidence, go into the witness box, take the oath or affirm, be shown a copy of their statement, and confirm that its contents are true. This statement then stands as their evidence-in-chief.

Question 12

When can a witness add to their statement during trial?

Answer 12

A witness cannot add to it at the trial unless the court gives permission.

Question 13

What are affidavits and how do they differ from witness statements?

Answer 13

Affidavits are sworn statements of evidence where the maker swears or affirms before a solicitor or other authorised person that the contents are true. Unlike witness statements, affidavits require this formal affirmation process.

Question 14

What do the rules of evidence state about irrelevant material?

Answer 14

Irrelevant material is not admissible. - ONLY relevant material must be included.

Question 15

Under what conditions can opinion evidence be admissible

Answer 15

If the opinion is made as a way of conveying relevant facts personally perceived by the witness.

Question 16

Can a witness draw conclusions from their evidence?

Answer 16

No, drawing conclusions is the role of the court.

Question 17

Provide an example of an inadmissible opinion a witness might give.

Answer 17

A witness stating that the defendant’s speed was “excessive in the circumstances” or “too fast” is inadmissible as it is for the court to decide. BUT - saying d was driving at ‘about 60 mph’ is admissible.

Question 18

What is the definition of hearsay?

Answer 18

• a statement made outside court;
• which is repeated in court;
• to prove the truth of the matter stated

Question 19

What is the crucial aspect that determines whether a statement is hearsay?

Answer 19

The purpose of the statement—whether it is used to prove the truth of the words said.

Question 20

What must a party do if they intend to call a witness whose statement contains hearsay evidence?

Answer 20

Simply serve the other party with the statement.

Question 21

What options does an opponent have when served with a statement containing hearsay evidence?

Answer 21

1. The opponent must then decide whether to ask the court to order that the maker of the original statement attends for cross-examination.
   or
2. serve notice of intention to attack the
   credibility of the hearsay evidence

Question 22

What happens if a party relies on a witness statement instead of calling the witness for oral evidence?

Answer 22

The entire witness statement becomes hearsay, and the opposing party cannot cross-examine the witness and must be given advance notice of this.

Question 23

how is the opposing party warned that a witness statement will be relied on?

Answer 23

The party intending to rely on the hearsay evidence must serve a hearsay notice - this will inform the other parties that the witness will not be called for oral evidence and explain the reason for this.

Question 24

When should the hearsay notice be served?

Answer 24

The hearsay notice should be served at the same time as the witness statement.

Question 25

What limitations may the court place on expert evidence?

Answer 25

the court may:

• refusing to allow any expert evidence at all;
• limiting the number of experts either generally or in relation to specific issues;
• directing that the parties must agree experts; or
• limiting expert evidence to written reports.

Question 26

Can a party call an expert without permission?

Answer 26

No, a party must obtain permission before calling an expert - considered at directions stage.

Question 27

What factors will the court consider when deciding whether expert evidence is necessary?

Answer 27

The court will consider:

• The value of the claim,
• Proportionality,
• The likely costs.

Question 28

What information must the party provide when seeking permission to use expert evidence?

Answer 28

• the name of the expert where practicable;
• the field the person is an expert in;
• their knowledge and experience to ensure they are suitable to give their evidence; and
• the issues the expert will address

Question 29

is expert opinion admissible?

Answer 29

YES expert evidence is admissible - his opinion on any relevant matter on which he is qualified to give expert
evidence shall be admissible in evidence’.

Question 30

What is the expert’s duty in court?

Answer 30

The expert’s duty is to assist the court by providing objective, unbiased opinions within their field of expertise. This duty overrides any obligation to the instructing party.

Question 31

What is a Single Joint Expert (SJE)?

Answer 31

A Single Joint Expert (SJE) is an expert who provides evidence on a particular issue for both parties, rather than each party instructing their own expert.

Question 32

How are SJEs instructed and how are costs handled?

Answer 32

The joint expert sends their report to both parties simultaneously, with the costs being shared by both parties.

Question 33

Who chooses the SJE?

Answer 33

If the parties cannot agree on the expert, the court will select the expert from a list prepared by the parties.

Question 34

What is the usual practice regarding SJEs in fast track cases?

Answer 34

In fast track cases, an SJE is usually appointed unless there is a good reason not to do so, rather than allowing each party to instruct their own expert.

Question 35

How is the instruction of experts handled in intermediate and multi-track cases?

Answer 35

In intermediate and multi-track cases, it is more common for parties to instruct their own experts. The factors considered include the amount in dispute, the importance to the parties, and the complexity of the issue.

Question 36

What will the court do when separate experts are ordered to streamline the trial?

Answer 36

The court will make further directions to narrow down the issues the experts need to address, including deadlines for exchanging reports, written questions for clarification, and expert discussions.

Question 37

what do parties do if they have questions for the experts?

Answer 37

Each party can submit written questions to the expert within 28 days to clarify their report. The expert’s answers are considered part of the report.

Question 38

What is a without prejudice discussion between experts?

Answer 38

it is a discussion between the experts,
usually in the absence of the parties or their legal representatives, and the contents will
not be referred to at trial unless the parties agree.

Question 39

What is the purpose of the without prejudice discussion between experts?

Answer 39

The discussion aims to narrow down the issues, identify areas of agreement, and highlight any disagreements. It is not intended to settle the case but to clarify and resolve the points in dispute.

Question 40

What are the experts required to do after their discussion?

Answer 40

The experts must prepare and sign a written joint statement for the court, summarizing the issues they agree on and disagree on, along with reasons for the disagreement. Copies must be provided to the parties.

Question 41

Can experts be called in to give oral evidence on intermediate track cases?

Answer 41

there is a presumption that the court will rely upon written reports in intermediate trach cases. It is MORE common on multi track for experts to give oral evidence

Question 42

What is the first requirement for the form of an expert’s report?

Answer 42

The expert’s report must be addressed to the court.

Question 43

what must an expert report contain in part 25?

Answer 43

the expert report must contain:

(a) be addressed to the court;

(b) give details of the expert’s qualifications;

(c) give details of any literature or other material that the expert has relied on;

(d) contain a statement setting out the substance of all facts and instructions;

(e) say who carried out any examinations, measurements, tests or experiments, their qualifications and whether the expert supervised;

(f) where there is a range of opinion, summarise this and give reasons for the expert’s own opinion;

(g) include a summary of the conclusions reached; and

(h) contain a statement that the expert understands their duty to the court and has complied with this, and is aware of the requirements of Part 35 and related guidance.

The report must also be verified by a statement of truth as follows

Question 44

What happens if the expert fails to comply with Part 35?

Answer 44

If the breach is serious, the party may not be allowed to rely on the expert’s evidence, but in most cases, the judge will consider the breach when deciding the weight of the expert’s evidence.