Evidence

Question 1

What is a witness statement?

Answer 1

A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

Question 1

Can the parties extend the time for serving/filing witness statements?

Answer 1

Yes, the parties can agree an extension of up to 28 days without the need for Court approval provided any hearing date is not put at risk.

Question 2

What should a witness statement contain?

Answer 2

A witness statement should cover every fact that needs to be proved by the witness’ evidence.

It must be headed with the court, claim number and parties, in a similar way to most statements of case.

It must be in the witness’ own words, although it will usually be drafted by a lawyer.

A statement of truth in a given form must be included.

Question 3

What are the two exceptions to the general rule that opinion evidence is inadmissible?

Answer 3

1. Perceived facts
2. Expert opinion

Question 4

What is an example of perceived facts?

Answer 4

‘The car was driving fast’ or ‘Leanne was drunk’.

Question 5

What is an affidavit?

Answer 5

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

Question 6

When are affidavits used?

Answer 6

Applications for a search order or a freezing injunction.

Question 7

What is a jurat?

Answer 7

A section at the end of an affidavit which authenticates the affidavit.

Question 8

What is hearsay evidence?

Answer 8

Hearsay is an oral or written statement, made out of Court, which is being adduced in Court to prove the truth of the matter stated.

Question 9

If hearsay evidence is in the witness statement of a person who is to give oral evidence at trial, is a hearsay notice required?

Answer 9

No formal notice is required as notice of the hearsay is deemed served when witness statements are exchanged.

Question 10

If hearsay evidence is in the witness statement of a person who is not giving oral evidence at trial, is a hearsay notice required?

Answer 10

No formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons.

Question 11

When must a formal hearsay notice be provided?

Answer 11

If the hearsay evidence is not contained in the witness statement of the person and they will/will not be attending trial.

It must be provided not less than 21 days before the hearing.

Question 12

What are the consequences if a formal hearsay notice is not provided when it should have been?

Answer 12

The evidence will still be admissible but the weight the Court attaches to it is likely to be low and there could be adverse costs consequences.

Question 13

What are the four possible options a party has on receipt of a notice of intention to rely on hearsay?

Answer 13

1. Request particulars of hearsay
2. Call for cross-examination with leave of the Court. Application must be made no later than 4 days after the hearsay notice was served
3. Challenge the weight of hearsay evidence
4. Attack the credibility of an absent witness-the receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served

Question 14

Are criminal convictions permissible as evidence in civil proceedings?

Answer 14

Yes, provided the offence is relevant to an issue in the proceedings.

Question 15

What is expert evidence?

Answer 15

Evidence from an expert who is a highly skilled or knowledgeable individual whose role is to advise the Court impartially on matters within their expertise.

Question 16

Is Court permission require to adduce expert evidence at trial?

Answer 16

Yes, Court permission is required.

Question 17

What is the duty of an expert and who do they owe their duty to?

Answer 17

It is the duty of experts to help the Court on matters within their own expertise and this overrides any obligation to the party instructing the expert. They owe their duty to the Court rather than those instructing them.

Question 18

Is the letter of instruction to an expert privileged?

Answer 18

No!

Question 19

When will a Court allow disclosure/inspection or cross-examination of an expert in relation to the letter of instruction?

Answer 19

When it considers that the instructions are inaccurate or incomplete.

Question 20

Will an earlier draft expert report be privileged?

Answer 20

Yes, the earlier draft is generally subject to litigation privilege and is usually therefore privileged from inspection.

Question 21

What is the effect of failure to exchange expert evidence in accordance with Court directions?

Answer 21

It means that the evidence cannot be used unless the Court gives permission.

Question 22

When will the Court give directions for a single joint expert?

Answer 22

The Court will give directions for a single joint expert on the fast and intermediate track unless there is good reason not to do so.

Question 23

When must Part 35 questions be put to an expert and what is their purpose?

Answer 23

Within 28 days of service of the report and should generally only be for the purposes of clarifying the report.

Question 24

What is the time limit for an experts response to Part 35 questions?

Answer 24

There is no time limit within which the expert must provide answers unless ordered by the Court.

Question 25

When must an expert making a written request for Court directions provide these?

Answer 25

-The expert must provide to the party instructing them a copy of any proposed request for directions at least 7 days before filing it at Court; and

-Provide a copy to all other parties at least 4 days before filing it at Court

Question 26

Do agreements between experts during discussions bind the parties?

Answer 26

No, they are without prejudice.

Question 27

When will the Court grant permission to call oral expert evidence at trial in small claims and fast track cases?

Answer 27

The Court will only order this if it is in the interests of justice to do so.

Question 28

What is hot-tubbing in the context of expert evidence?

Answer 28

Where some or all of the evidence of experts in similar disciplines is given concurrently. The judge will ask the experts in turn for their views on the issues on an agenda.

Question 29

If party decides it is not intending to rely on its expert’s report once that report has been disclosed, can the other still rely on it?

Answer 29

Yes, this is possible. The same goes for witness evidence.