Evidence Flashcards
what will the court consider in relation to evidence?
The court will consider the OO and may control evidence by giving directions:
o Issues i.e. liability, quantum or causation
o Nature of evidence required to decide issues i.e. an expert’s report
o Number of witnesses
o How evidence will be placed before the court (i.e. oral/written)
o Limit cross-examination
o Exclude admissible evidence (i.e. the issue no longer relevant)
what is a summary of the burden of proof?
a duty to produce sufficient evidence to establish their argument
who normally has the burden of proof?
- BOP usually lies with the person who asserts it, this is C but shifts to D in some instances
when does the BOP shift to D?
o If D has committed a relevant criminal offence. BOP then shifts to D to prove they have not been convicted of this.
o Where D alleges contributory negligence
o Where D argues C has failed to mitigate their loss
what is the standard of proof?
balance of probabilities (i.e. more likely than not)
when can someone be called to give oral evidence?
only if they have filed a w/s
what must be proved in oral evidence?
- Any fact a party intends to rely on must be proved at trial by oral evidence
what does the w/s stand as?
- The w/s stands as evidence in chief
i.e. when W enters the box they will take the oath / affirm and give their name and address. They will be given their w/s and ask to confirm whether it is true. This is treated as the witness giving the oral evidence and they are then cross-examined.
if a party objects to the admissibility of evidence, what should they do?
- If a party objects to the admissibility, they should try to resolve this with the o/s. Failing that, it will need to be raised at the PTR or beginning of the trial
what happens if a party tries to rely on new evidence at trial?
If a w/s hasn’t been served / a party tries to rely on new evidence at trial, this can only be done with the judge’s permission.
This would only be allowed in exceptional circumstances where this is good reason as to why it was not dealt with in the w/s, i.e.:
o If new matters have arisen since the witness statement was served
o In response to matters dealt with by the other party’s witness
when might a judge allow a party to rely on new evidence at trial?
o If new matters have arisen since the witness statement was served
o In response to matters dealt with by the other party’s witness
what is the purpose of a witness summary?
If a party is required to serve a w/s but unable to obtain one, they can apply without notice for permission to serve a witness summary instead.
what information is included in a witness summary?
o The witness’s name and address (unless the court orders otherwise)
o The evidence, if known, that would be included in a w/s
o If the evidence is not known, the matters about which the party serving the witness summary propose to question the witness
why is it important a witness statement complies with the CPR?
because it could be refused as evidence
give a summary of the formalities regarding the content of a witness statement
o Headed with the title of the proceedings
o Party, initial & surname, w/s number, exhibit refs, date (+translation date)
o Opening paragraph w’s full name, address, occupation / description / position, whether the statement is made as part of their employment and if so the name of the employer/business and if they are a party
o The process in which the statement has been prepared i.e. in-person
o It must indicate that the statements are made from w’s own knowledge and what are matters of information or belief and the source of this
o Exhibits referred to as ‘I refer to the [description] marked’
o Exhibits numbers run consecutively if more than one w/s
o Verified by a statement of truth signed by the W (not legal rep): ‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’.
what must the opening paragraph of a w/s state?
o Opening paragraph w’s full name, address, occupation / description / position, whether the statement is made as part of their employment and if so the name of the employer/business and if they are a party
what statement of truth is used on a witness statement and who signs this?
signed by the W (not legal rep): ‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’.
what does the CPR require in terms of form of a w/s?
o Single sided only
o Numbered paragraphs
o All numbers, including dates, expressed in figures (i.e. 5, not five)
o Format of dates is i.e. ‘6 January 2024’
o Normally in chronological order
o Should be written in the first person and w’s own words as far as possible
o Should be written in w’s own language, signed, dated and translated
what must not be included in a w/s?
o Include inadmissible or irrelevant material (irrelevant mater is inadmissible)
o Engage in matter of argument, express opinion or comment on other W’s
what is an affidavit?
sworn statements of evidence.
what is the requirement of an affidavit?
The maker has to swear or affirm before a solicitor (not their own) or other authorised person that the content is true.
when are affidavits used?
less common these days but required i.e. application for a freezing inj. & search order
what are the main rules of evidence?
- Only relevant material is to be included i.e facts which are not admitted/denied (identified by looking at the SOC).
- Opinion evidence is not admissible (there are exceptions to this)
when is opinion evidence admissible?
o Facts perceived personally > W can state what they saw, heard or felt. They shouldn’t draw a conclusion i.e. allowed > ‘D was driving very fast, about 60mph’. Not permissible > ‘D was driving too fast’
o Experts are allowed to give opinion evidence
what is hearsay evidence?
Simply, this is evidence repeated by W which has come from another person (i.e. they did not see/hear it themselves).
To be hearsay, the statement must:
o Be made outside court and repeated in court (in oral evidence or writing)…
o …to prove the truth of a matter stated (i.e if a statement is made in court to prove that they were lied to, this would not be hearsay)
what hearsay is admissible?
Hearsay is admissible if it is fact or admissible opinion.
what hearsay is inadmissible?
The hearsay will be inadmissible if it is irrelevant material or inadmissible opinion.
what are the types of hearsay?
first-hand and second-hand
explain first-hand hearsay and give an example
the person giving the information to W saw/heard it personally
i.e. A told W that he saw B damage the stool / W keeps a diary and records what she sees. The diary contains the statement and is used to prove the truth of a statement so it is hearsay.
explain second-hand hearsay and give an example
information is relayed through more than one person i.e. someone tells you that someone else told them something
i.e. W gives evidence of something B was told by C / W records what she was told by B. The diary is used at the trial to prove truth of what B said. The statement in the diary is second-hand hearsay.
if a party intends to call w/s who’s statement contains hearsay, what must they do?
all they need to do is serve the w/s
if a party does not intend to call w/s who’s statement contains hearsay but rely on the statement itself, what happens and what must they do?
the whole statement becomes hearsay. They must serve the w/s with a hearing notice.
when must a party serve a hearing notice?
in all instances (not inc. when a party intends to call a witness who’s statement contains hearsay evidence)
if a party intends to serve hearsay evidence which isn’t included in a w/s what must they do?
(i.e a party wants to rely on evidence provided by someone who has not given a w/s e.g. an email)
They must serve a hearing notice and supply a copy upon request. It must be served by the deadline for w/s.
what does the hearing notice include?
- The hearing notice sets out that W is not being called to give evidence and why. It is signed and dated.
what can the o/s do when they receive a hearing notice?
o Seek an order for the original statement maker (not W) to be x-examined
o Serve a notice of intention to attack the credibility of the hearsay
o o/s could seek an order for attendance and serve a notice to say if they cannot attend they will attack the credibility
what is the consequence is notice requirements are not met?
- If notice requirements are not complied with the evidence is still admissible, but the failure is considered when weight is assessed or at costs
why is hearsay second best evidence?
- Hearsay is second best evidence as it cannot be tested
what can a judge consider when deciding the weight to attach to hearsay evidence?
Non-exhaustive list of considerations for the judge:
o Have regard to any circumnutates from which inference can be reasonably drawn as to the reliability or otherwise of the evidence
o If it was reasonable or practicable to produce the original statement maker (i.e. was there a genuine reason they couldn’t attend e.g. abroad or dead)
o If the original statement was made contemporaneously with the event (i.e. note of car reg taken at the time is more reliable than a week later)
o Whether multiple hearsay was involved
o If the statement maker had any motive to conceal / misrepresent facts
o Whether the original statement is an edited account or made in a collaboration with another for a particular purpose
o Whether the circumstances suggest an attempt to prevent proper evaluation of the weight of evidence (i.e. notice was given so late the o/s didn’t have a fair chance to respond)
re: expert evidence
when is expert evidence admissible?
with permission of the court. This applies to instructing an expert or rely on a report obtained pre-issuing
re: expert evidence
what information must parties provide when seeking permission to instruct?
- When seeking permission parties must provide: expert’s name (where possible), their field, knowledge & experience to ensure suitability, issues they will address and estimated costs
re: expert evidence
when will the court allow the instruction of an expert?
- Court must be satisfied it is necessary to resolve the issues and will consider the value of the claim, proportionality, costs (inc. burden) and possible delay
re: expert evidence
how can the court control expert evidence?
The court can:
o Refuse to allow any expert evidence at all
o Limit the number of experts either generally or in relation to specific issues
o Direct parties agree an expert
o Limit expert evidence to written reports
re: expert evidence
what form will the report take?
- Expert evidence will be in a written report, unless the court directs otherwise
re: expert evidence
what is the position regarding oral evidence on the tracks?
o Small & fast - not directed to attend the hearing unless necessary in the interest of justice
o Multi-track & intermediate - expert often permitted to attend
re: expert evidence
when will the court direct an SJE?
- If both parties want to submit expert evidence on an issue, the court may direct a single joint expert if appropriate to do so
re: expert evidence
what will the court consider when deciding whether the grant an SJE?
o Whether it is proportionate to have separate experts
o If it will assist to resolve the issue in a quicker and be more cost-effective
o There is likely to be a range of expert opinion
re: expert evidence
what will the court do if parties cannot agree an SJE?
- If the SJE cannot be agreed, the court will pick from a list agreed by parties
re: expert evidence
what is the position regarding instructions to the SJE?
- Separate instructions can be sent if they cannot be agreed, parties should try to agree a list of documents and assumptions the SJE should make
o Copies of the instructions to the SJE must be sent to all other parties
re: expert evidence
what is the position regarding SJEs on the fast-track?
- SJE is usually appointed in fast-track cases unless there is good reason not to
re: expert evidence
who pays for an SJE?
- Cost of instruction is shared between parties
re: expert evidence
when is there likely to be separate experts?
multi-track
re: expert evidence
what will the court consider when deciding whether to grant separate experts?
o The amount in dispute
o The importance to parties
o Complexity of the issue
re: expert evidence
when separate experts are instructed, what will the court do?
The court will make further directions to streamline process/narrow issues:
o Deadline to exchange reports & 28 days for each party to put questions to the expert to clarify the report. Answers form part of the report.
o May order WP discussion between experts. This is usually in the absence of parties/legal rep. Contents of the meeting is not discussed at trial unless parties agree. The purpose is to narrow issues i.e. extent of agreement, reasons for disagreement, any action to resolve the issues etc (a written joint statement must be filed and served confirming agreed and disagreed issues (with reasons for the latter)
o Whether there will be oral evidence (i.e. more common on multi-track)
re: expert evidence
what instructions must the expert include?
- The expert must include all instructions that are material to their conclusion
re: expert evidence
are instructions legally privileged?
- Instructions to experts are not legally privileged. They can be inspected by the court if there are reasonable grounds to believe the instructions were inaccurate or incomplete.
re: expert evidence
can a parties cross-examine experts on the instructions they received?
Cross-examination of experts on their instructions is only allowed with permission of the court or agreement of the instructing party
re: expert evidence
when will the court allow an expert to be cross-examined on their instructions?
- The court will grant permission if the instructions appear to be inaccurate or incomplete and if cross-examination is in the interests of justice
re: expert evidence
to whom does the expert owe their duty?
- Duty is to the court, not the instructing party (albeit they do owe duties to the instructing party i.e. reasonable skill and care s13 SGA 2918)
re: expert evidence
what is the expert’s duty?
- Duty to provide objective, unbiased opinions on matters in their expertise (not promote the view of the solicitor)
re: expert evidence
what will the court consider when deciding if the expert has been impartial?
o When considering impartiality, the court will consider if they would have come to the same conclusion if the instructions came from another party
re: expert evidence
what expert evidence is the court likely to exclude?
- The court is likely to exclude evidence where the expert fails to demonstrate an understanding of their duties to the court
re: expert evidence
what must an expert not do when giving evidence?
- Experts should not assume the role of an advocate
re: expert evidence
on what basis can an expert not be instructed?
- Experts cannot be instructed on a conditional or contingency fee basis because this could compromise their independence
re: expert evidence
can an expert who works for the party give expert evidence?
- An expert is not disqualified from giving evidence by the fact they are employed by a party, so long as they comply with their duties
re: expert evidence
when do the CPR formalities need not be complied with?
if the court waive the requirement; or
in professional negligence cases D can give their own expert evidence as to whether there was negligence in the form of a w/s
re: expert evidence
what are the formalities?
o The report being addressed to the court
o Details of the expert’s qualifications
o Details of literature / materials relied on
o Statement of facts and instruction
o Details of who carried out any examinations, measurements, tests etc and their qualifications and whether they were supervised
o If there is a range of opinion then a summary of this the expert’s opinion and reasoning
o Summary of conclusions reach
o Statement that they understand their duty to the court, part 35 requirements and related guidance and following this
o Statement of truth
re: expert evidence
what statement of truth is given?
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
re: expert evidence
what is the consequence if the report doesn’t comply with formalities?
- Where a party fails to comply, the court can restrict the weight of the statement. If the breach is serious the court may exclude reliance on it
