Evidence Flashcards
Describe direct evidence in the context of witnesses.
Direct evidence is the testimony provided by a witness regarding what they have perceived with their own senses.
Explain the significance of affidavits in legal proceedings.
Affidavits are written statements made under oath, serving as a form of evidence of fact in legal proceedings.
How do witnesses of fact differ from expert witnesses?
Witnesses of fact provide direct evidence based on their own perceptions, while expert witnesses provide evidence based on their specialized knowledge and opinions.
What is the role of real evidence in a legal context?
Real evidence consists of tangible items presented as evidence to support facts in a case.
Describe the general rule regarding witness evidence at trial according to CPR 32.2(1)(a).
The general rule is that any fact which needs to be proved by the evidence of witnesses at trial will be by oral evidence, although it can also be given by video link (CPR 32.3).
How does exchanging witness statements benefit the parties involved in a trial?
Exchanging witness statements saves time and costs at trial and helps facilitate settlement by allowing the parties to evaluate the merits of their respective cases.
Define the consequences of not serving a witness statement within the specified time.
If a witness statement is not served within the time specified by the court, the witness may not be called to give oral evidence unless the court grants permission.
Identify the types of limitations the court may impose on witness statements.
The court may impose limitations on the issues, the number of witnesses, the length of statements, and the order of service.
At what point in the legal proceedings does exchange of witness statements take place?
The exchange of witness statements is the step that follows disclosure and inspection.
Describe the process for extending the time for serving witness statements.
Parties can agree in writing to extend the time for serving witness statements by up to 28 days without court approval, as long as it does not risk a hearing.
What should be done if an extension affects a key date?
If an extension agreed before witness statements are due affects a subsequent key date, an application should be made to the court for the extension under CPR 3.
What happens if witness statements are served late without an agreed extension?
If witness statements are served late without an agreed extension, an application for relief from sanctions must be made under CPR 3.9.
Describe the court’s discretion regarding the presentation of evidence at trial.
The court has the discretion to allow a witness to amplify their witness statement or provide evidence on new matters that have arisen since the statement was served, but it is unlikely to permit changes that are unjustified or late, as this could create injustice to the other party.
What is the consequence of presenting late or unjustified changes in evidence?
Presenting late or unjustified changes in evidence may be denied by the court to avoid creating injustice to the other party.
What is the difference between evidence presentation in interim hearings and trials?
In interim hearings, evidence is usually presented in writing without in-person testimony, while trials typically involve live witness testimony and cross-examination.
How can a party challenge written evidence in an interim application?
A party may apply for permission to cross-examine the person providing the written evidence, although this is considered very unusual.
What is the role of a lawyer in preparing a witness statement?
The lawyer interviews the witness to ‘proof’ them, produces a draft statement, and allows the witness to amend it as appropriate.
Explain the criteria for a witness’s opinion to be admissible in civil proceedings.
A witness’s opinion is admissible if they are qualified to give expert evidence on a relevant matter.
How does the ‘perceived facts’ exception relate to witness testimony?
The ‘perceived facts’ exception allows witnesses of fact to provide opinion evidence based on their observations.
When must evidence of fact be given by affidavit instead of a witness statement?
Evidence of fact must be given by affidavit if required by the court or rule, such as for an application for a search order or a freezing order.
What is an affidavit?
An affidavit is a written statement of evidence that is sworn before a person authorized to administer affidavits.
Who is a deponent?
A person who gives evidence by affidavit is called a deponent.
In what situation might a party choose to give evidence by affidavit at a hearing?
A party may choose to give evidence by affidavit at a hearing other than trial if they wish to do so.
Describe the purpose of a jurat in an affidavit.
A jurat is a statement at the end of a document that authenticates the affidavit, confirming that it was sworn before a qualified individual.
List the requirements for a jurat to be valid.
A jurat must be signed by all deponents, completed and signed by the person before whom the affidavit was sworn, contain the full address of that person, and follow immediately from the text without being on a separate page.
What information must be printed beneath the signature of the commissioner for oaths?
The name and qualification of the commissioner for oaths must be printed beneath their signature.
Identify the special rules that govern evidence in civil proceedings.
The special rules govern opinion evidence, privileged evidence, and hearsay evidence.
Identify the characteristics that classify a statement as hearsay.
A statement is classified as hearsay if it is an oral or written statement made out of court and is being used in court to prove the truth of the matter stated.
Discuss the implications of using hearsay evidence in court.
Using hearsay evidence can be problematic as it may not be reliable, since the original speaker is not present to be cross-examined, which can affect the credibility of the evidence.
Describe the requirement for a party intending to use hearsay evidence at trial.
A party must give notice to the other party that it intends to rely on hearsay evidence.
How is notice of hearsay evidence deemed served when it is included in a witness statement of a person giving oral evidence?
No formal notice is required; notice is deemed served when witness statements are served on the other party.
What must a party inform the other party if hearsay evidence is in a witness statement of a person not giving oral evidence?
The other party must be informed that the witness will not be giving evidence at trial, along with the reasons.
What happens if a party fails to give notice of hearsay evidence when required?
The evidence remains admissible, but the court may attach less weight to it and the offending party may face penalties in costs.
When is the latest date for serving witness statements in relation to hearsay evidence notice.
Notice must be given no later than the latest date for serving witness statements to avoid potential penalties and issues with evidence weight.
Describe the options available to a party upon receiving a notice of intention to rely on hearsay evidence.
- Request particulars of hearsay (s.2 CEA 1995),
- Attack credibility of an absent witness (s.5 CEA 1995)
- Call for cross-examination (s.3 CEA 1995), and
- Challenge the weight of hearsay evidence (s.4 CEA 1995).
How can a party call for the cross-examination of a witness who made a hearsay statement?
The other party may, with the court’s permission, call the declarant as a witness and cross-examine them on the hearsay statement as if they had been called by the original party.
Define the potential tactical effects of calling a witness who made a hearsay statement.
If the witness is weak, calling them could have devastating tactical effects for the party that originally adduced the hearsay evidence.
What is the time limit for making an application to call a witness after receiving a hearsay notice?
The application must be made no later than 14 days after the hearsay notice was served on the applicant.
Describe the forms in which hearsay evidence can arise.
Hearsay evidence can arise in various forms, including oral statements, written documents, and pictorial representations like plans, photographs, and models.
What are the notice rules for hearsay evidence?
The notice rules for hearsay evidence require that it must not be contained in a witness statement or expert’s report, not be given orally at trial, and must comply with the notice of intention to rely on hearsay provisions.
Do plans, photographs, and models require special consideration in legal proceedings?
Yes, plans, photographs, and models require special consideration as they fall under hearsay evidence and must comply with notice rules to be admissible at trial.
Explain the limitation on the admissibility of convictions in civil proceedings.
Only subsisting convictions are admissible as evidence in civil proceedings; past convictions that are no longer valid cannot be used.
What is required for a witness statement to be valid?
A witness statement must be signed by the individual who gives it.
How should a witness statement be structured according to the content provided?
A witness statement should include a heading, the party relying on the witness, the initial and name of the witness, the number of the statement, any exhibits, the date of signing, and the date of translation if relevant.
Explain the importance of the witness’s own words in the statement.
The statement must continue in the witness’s own words and language to ensure authenticity and clarity, with translations provided if necessary.
Describe the role of the Claimant in the contract with the Defendant.
The Claimant was contracted to advise on the purchase and supervise the installation of a new computer system for the Defendant.
What happens to the company from which the Defendant purchased the computer system?
The company has gone into liquidation.
Describe the main formatting differences in a witness statement for an interim hearing compared to one for trial.
A witness statement for an interim hearing includes two extra paragraphs: one confirming the reason for the statement near the beginning, and another at the end stating what the witness wants the court to do regarding the interim application.
What should the final paragraph of a witness statement for an interim hearing include?
The final paragraph should confirm what the witness would like the court to do in relation to the interim application.
How must a witness confirm their understanding of the purpose of their statement?
The witness must include a signed confirmation that they understand the purpose of the witness statement is not to argue the case nor to take the court through the documents.
How does a judge utilize expert opinion in court cases?
A judge can be assisted by expert opinion from practitioners or academics with expertise in the relevant area when facing issues beyond their knowledge.
Define the two situations when opinion evidence is admissible in court.
Opinion evidence is admissible in cases of perceived facts and expert opinion.
Explain a common misconception about instructing expert witnesses.
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 in proceedings.
When do parties typically seek permission to use expert evidence?
Parties usually obtain permission to use expert evidence by seeking a direction from the court at the case management stage.
Describe the likelihood of expert evidence being restricted in different court tracks.
The court is more likely to restrict expert evidence in the small claims track, the fast track, and the intermediate track.
How many experts are typically allowed per party in the fast track according to CPR 26.6?
In the fast track, oral expert evidence at trial is limited to one expert per party in relation to any expert field.
How many experts per party are allowed in the intermediate track according to CPR 26.7?
In the intermediate track, oral expert evidence at trial is likely to be limited to two experts per party.
How should the information regarding expert evidence be presented when applying for permission?
The information should be set out on the directions questionnaire.
What caution should parties exercise when naming an expert in the directions questionnaire?
Parties should be cautious because if the court orders the named expert to be used, they will need to return to court for permission to use a different expert if issues arise with the named expert’s report.
What risk is associated with naming an expert in the directions questionnaire?
There is a risk of having to allow the other party to see the original expert’s report, which could be detrimental to the party’s case.
Define the role of the directions questionnaire in the application for expert evidence.
The directions questionnaire is used to present the necessary information regarding the costs and identification of expert evidence when applying for permission.
Define the Ikarian Reefer Guidelines.
The Ikarian Reefer Guidelines outline the duties and responsibilities of experts, emphasizing that expert evidence should be independent and unbiased.
What types of documents must be provided to the other side during the exchange of reports?
Photographs, plans, survey reports, and other documents referred to in the expert evidence must be provided to the other side at the same time as the exchange of reports.
Describe the privilege status of a letter of instruction to an expert according to CPR 35.10(4).
The letter of instruction to an expert is not privileged from inspection, meaning it can be subject to disclosure.
What must a party demonstrate to force disclosure of expert instructions?
A party must have reasonable grounds for suspecting that the instructions are inaccurate to force disclosure and inspection of the instructions.
How does litigation privilege apply to draft reports submitted by experts?
Draft reports are generally subject to litigation privilege and are usually protected from inspection until the final version is served.
Define the consequences of failing to exchange expert reports in a trial.
If expert reports are not exchanged in accordance with court directions, the evidence cannot be used unless the court provides permission.
Describe the purpose of appointing a single joint expert in legal cases.
To save costs by having one expert instead of each party hiring their own.
In which types of cases are single joint experts commonly ordered?
Single joint experts are often ordered in small claims, fast track, and intermediate track matters.
What is required for transparency when working with a single joint expert?
The single joint expert should be copied in to all relevant correspondence.
What happens if the parties cannot agree on a single joint expert?
The court can select an expert from a list prepared by the parties or direct that the expert be selected in another manner.
Describe the process for submitting questions to an expert after reports have been exchanged.
Once expert reports have been exchanged, a party can submit written questions to the other party’s expert or a single joint expert within 28 days of service of the report. Questions can only be put once and should aim to clarify the report.
What must be done with the questions submitted to an expert?
A copy of the questions must be sent to the other party.
What happens if an expert does not answer the submitted questions?
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.
Define the purpose of the questions that can be submitted to an expert.
The questions should generally only be for the purposes of clarifying the report.
What happens if an expert has questions for the court?
Experts may submit questions to the court as part of their process for seeking directions.
What is the minimum notice period for an expert to provide a proposed request for directions to the instructing party?
The expert must provide a copy of any proposed request for directions to the party instructing them at least 7 days before filing it at court.
How many days in advance must an expert provide a copy of the proposed request for directions to all other parties?
The expert must provide a copy to all other parties at least 4 days before filing it at court.
Who is responsible for serving the order on the single joint expert?
The claimant must serve the order on the single joint expert.
How does the court facilitate expert discussions in a case with conflicting expert evidence?
The court can specify the issues for discussion and direct the experts to produce a joint statement outlining agreements and disagreements.
What happens to agreements made between experts during their discussions?
Agreements do not bind the parties unless the parties expressly agree to be bound by them.
What should parties consider before refusing to be bound by an expert agreement?
Parties should carefully consider their refusal and be prepared to explain it if it becomes relevant to the issue of costs.
Who is allowed to attend the discussions between experts?
Neither the parties nor their legal representatives can attend unless ordered by the court or agreed upon; if legal representatives do attend, they should not normally intervene.
What is the role of legal representatives during expert discussions?
Legal representatives may attend to answer questions or advise on the law but should not normally intervene in the discussions.
Describe the actions a party can take if they believe their expert has acted incompetently.
A party can argue that the agreement should not be accepted by the court or that they should present further expert evidence if there is a good reason to believe the first expert has improperly modified their opinion.
How can a party challenge the validity of an expert’s opinion in court?
A party can argue that the expert has stepped outside their expertise or acted incompetently, and they may seek to introduce further expert evidence.
Explain the significance of expert discussions being ‘without prejudice’.
It protects the confidentiality of discussions between experts, ensuring that these discussions cannot be used against either party in court unless there is mutual agreement.
Define ‘hot-tubbing’ in the context of expert evidence at trial.
Hot-tubbing is a process where experts from similar disciplines give their evidence concurrently, discussing issues set out in an agenda provided by the court or agreed upon by the parties.
What is the role of the judge during the hot-tubbing process?
The judge asks the experts for their views on the issues, may pose questions, invites comments from other experts, and allows the parties’ representatives to ask questions.
In what types of cases is the court more restrictive about allowing expert oral evidence?
The court is more restrictive in small claims track and fast track cases regarding the allowance of expert oral evidence.
How can a party respond if an expert’s advice differs substantially from their expectations?
The party may seek permission to call another expert, although this can be difficult and costly.
What condition does the court often impose when allowing a second expert’s report?
The court often requires that the first expert’s report be disclosed to prevent ‘expert shopping’.
What is usually not considered a sufficient reason to change experts?
The mere fact that the original expert has changed their mind after meeting with the other party’s expert is not usually sufficient.
What happens if a party decides not to rely on its expert’s report after disclosure?
The other party may still rely on the disclosed report at trial, as per CPR 35.11.
