Evidence

Question 1

What is the general rule regarding evidence?

Answer 1

Any fact that needs to be proved is to be proved at trial by oral evidence given in public, and at any other hearing by evidence in writing

Question 2

How can a witness give evidence?

Answer 2

By any means, including video link

Question 3

What is pre-trial exchange?

Answer 3

When giving directions for trial, the court will usually order witness statements to be exchanged. A party must serve on the other parties any witness statement of the oral evidence upon which the party serving the statement intends to rely

Question 4

What is a witness statement?

Answer 4

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

Question 5

What happens if when exchanging witness statements, you object to the relevance or admissibility of material contained in your opponents statements?

Answer 5

Notify the other party of your objection immediately and seek to resolve the dispute. If this is unsuccessful, raise the matter at any pre-trial review or at the beginning of the trial itself

Question 6

What if after the exchange of witness statements, a party wants a witness to give additional evidence?

Answer 6

Prepare and serve a supplemental witness statement dealing with new points as soon as possible

Question 7

How should different sources of information be signposted in a witness statement?

Answer 7

The statement should indicate which of the statements are based on the witness’s own knowledge and which are matters of information or belief and the source of this

Question 8

What are the sanctions for not serving a witness statement?

Answer 8

If a party fails to serve a witness statement in the time limit then the witness cannot give oral evidence unless the court gives its permission

Question 9

What happens if a party knows that he will not make the deadline to exchange?

Answer 9

As soon as that becomes clear, he should contact all other parties and seek an agreement to an extension

Question 10

What is a party is ready to exchange within the deadline but his opponent is not?

Answer 10

If there is good reason given, then an extension should be agreed, but without an application for extension then the party potentially gains an advantage over the opponent in that they will see the evidence fist and could tailor their evidence to this

Question 11

Will the court allow an application to serve a witness statement late or to rely on a witness at trial without having previously served a statement?

Answer 11

This could go either way depending on the circumstances of the case and the overriding objective

Question 12

Is opinion evidence admissible?

Answer 12

The general rule is that opinion evidence is not admissible

Question 13

Are there any situations where opinion evidence will be admissible?

Answer 13

Sometimes a witness can struggle to differentiate between fact and opinion. A statement of opinion by a witness on an relevant matter which he is not qualified to give expert evidence on, if made as a way of conveying facts personally perceived to him, is admissible as evidence of what he percevied.

Question 14

What is the main exception to opinion evidence?

Answer 14

Expert evidence

Question 15

What is hearsay evidence?

Answer 15

An oral or written statement made outside of the courtroom which is repeated to the court in order to prove the truth of the matter stated

Question 16

What are the three questions to consider when identifying if evidence is admissible hearsay?

Answer 16

1. Does the evidence consist of an oral or written statement made outside the courtroom?
2. Is that statement being presented to the court in order to prove that it is true?
3. Is the statement an admissible statement of fact or opinion?

Question 17

How much weight is attached to hearsay evidence?

Answer 17

Hearsay can be admissible but is not the best evidence of fact and may be less likely to be true or accurate.

Question 18

How is best to determine the weight to be attached to hearsay evidence?

Answer 18

Assessing the probative value of the evidence

Question 19

How is the probative value of hearsay evidence assessed?

Answer 19

1. What issue, if any, does the hearsay evidence address?
2. How important is that issue in the case?
3. What other evidence is available on the same issue?
4. Is the hearsay evidence more probative than any other evidence which the proponent could procure through reasonable efforts?

Question 20

Do parties have an unfettered right to use expert evidence?

Answer 20

No, the courts can restrict expert evidence to that which is reasonably required to resolve the proceedings, bearing in mind the overriding objective and issue of proportionality

Question 21

What is the duty of an expert?

Answer 21

To help the court on the matters within his expertise and this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid

Question 22

How is bias eliminated when selecting an expert?

Answer 22

By selecting an independent expert

Question 23

Can the court restrict expert evidence?

Answer 23

Yes, it is restricted to expert evidence which is reasonably required to resolve the proceedings. The court’s permission is needed for expert evidence to be admissible anyway

Question 24

Are instructions from a solicitor to an expert privileged?

Answer 24

No, instructions are not privileged against disclosure but the court will not order disclosure of a specific document, or permit questioning in court other than by the party who instructed the expert

Question 25

How is expert evidence given?

Answer 25

Expert evidence is given in a written report unless the court directs otherwise, and if the report is to be relied on at trial, the report must be disclosed to the other party

Question 26

Can any questions be put to the expert?

Answer 26

Yes, once the experts report has been disclosed, the party who did not instruct the expert may put written questions to them about the report. A copy of these questions should be sent to the other party as well

Question 27

What happens to answers to questions about the experts report?

Answer 27

These answers will form part of the experts report

Question 28

Is there discussion between the experts appointed by the parties?

Answer 28

The court will often direct that the experts from both parties meet and have a without prejudice discussion to agree and narrow on the issues at hand

Question 29

What happens after the experts’ discussion?

Answer 29

A statement must be prepared by the experts detailing areas of agreement, and disagreement. These should be signed within seven days, and copies sent to the parties within 14 days

Question 30

Can a party change experts?

Answer 30

The party will have to demonstrate good reason why they are changing experts. If the expert has changed his mind, then the party should show that the experts change of mind has been based on unsound reasons or a mistaken view of the facts, or that he has acted outside his area of expertise or instructions

Question 31

What is a single joint expert?

Answer 31

A single joint expert is one expert which is used by both parties, and normally used in fast-track cases

Question 32

Should an application to exclude all or part of an opponent’s expert’s report be made pre-trial, or at trial?

Answer 32

At trial