Evidence Flashcards
which part of the cpr contains the rules re evidence
parts 32 and 33
what are the two types of evidence
factual evidence from witness and expert witness from suitably credible witness
what is a witness statement?
written statement signed by a person containing evidence which the person would be allowed to give orally
what if additional witness evidence is required
prepare and serve supplemental witness statement ASAP
what should the statement be in PD 32 18.1
witnesses’ own words as far as practicable and drafted in their own language, in the first person
what if there is any defect in the witness statement
court can refuse to admit it as evidence
what must the witness statement not contain
matters asserted that are not within the knowledge of the witness
what must WS contain
statement of truth in witnesses own language signed by themself
can witness add to witness statement r32.5
with court permission
what happens after serving witness statement
witness called to give oral evidence, is cross examined
what if witness does not want to go to court
court permission to give witness summary
what must a witness summary contain
evidence that would otherwise go in a witness statement
areas about which they propose to question the witness
witness name and address
what 4 things will be considered when granting permission for witness summary
whether applicant has shown inability to give witness statement
extent to which proposed witness is likely to give relevant evidence
whether summary compatible with overriding objective
adequacy of summary content
what happens if witness summary or statement is not served within the relevan timeframe
witness cant give oral evidence without courts permission
seek extension and record in writing
what is an affadavit
sworn statement of evidence
general rule in relation to opinion evidence
not admissible
what is hearsay evidence s1(2)(a) civil evidence act
a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated
will evidence be excluded on grounds of hearsay s1 civil evidence act
no
what does s2 impose on a party proposing to bring hearsay evidence
must notify any other party of the fact and give particulars re evidence
can hearsay evidence be relied on where og statement was made by someone incompetent to be a witness
no
what if evidence such as plan, photo, model or records are to be used and is not contained in a witness statement, given orally or subject to hearsay notice
inadmissible unless intention to use evidence is disclosed 21 days before hearing
what can be used instead of trying to prove a particular fact
notice requiring admittance of facts form n266
questions when determining whether expert evidence be permitted
is it necessary before the issue can be resolved
if not necessary, will it assist the court in resolving the issue
in the context of the proceedings, is expert evidence reasonably required
what if an expert is unsure of their obligations
file request for court directions
what is the duty of an expert witness
completely objective and unbiased in the way they provide their opinion
how can the courts restrict expert evidence 35.1
to that which is reasonably required to resolve proceedings
when is permission for expert witness granted
at the directions stage
what is the norm in fast track proceedings re expert evidence
given via written report or reports rather than by way of oral evidence
procedure for expert witness
to be given via written report and disclosed to the other party in accorance with court directions
is expert report privileged
when first obtained as it has been prepared for the dominant purpose of litigation - they have to give to the other party where they wish to rely on it
can ordinary witness give statement that could only be given by way of an exper
no- evidence cant be adduced which that witness cant give orally JD wetherspoon v Harris
what if there is a conflict of interest
does not automatically disqualify an expert- key is whether the opinion is independent. material conflict would likely result in court refusal to permit
what can a party that did not instruct the expert do after report has been disclosed
written question directed to expert
- may be put only once
must be put within 28 days of service of the report - must be to clarify the rpeort
why would the parties experts meet
have a without prejudice discussion to agree and narrow down issues
what if expert changes statment following discussion with solicitor
ammendum explaining change of opinion required
can a modification of experts statement bind
modification of opinion cannot bind the party that instructed them
where is it appropriate to have a single joint expert
fast track and intermediate unless there are good reasons not to do so/quantum issues
what will court direct re single joint expert
parties prepare joint instructions
expert fees paid jointly by parties
further directions where identity of expert is not agreed
what if fees to expert are high
court can limit amount to be paid by way of fees and expenses
