Evidence and disclosure steps required in commencing, responding to, progressing, or defending a claim

Question 1

Evidence included MUST be?

Answer 1

relevant to the proceedings.

Question 2

Evidence DOESN’T have to prove or disprove a fact in issue BUT has to?

Answer 2

assist in proving or disproving or tend to prove or disprove a fact in issue, making it more or less probable.

Question 3

Evidence relevant, then?

Answer 3

admissible

Question 4

Admissible evidence is evidence…

Answer 4

the court allowed to consider.

Question 5

Opinion evidence NOT admissible UNLESS following exceptions apply:

Answer 5

Evidence based on facts of the case that are personally perceived by the witness
(NOT their own personal view of the events).
Expert opinion evidence within their qualified area of expertise.

Question 6

Hearsay evidence is:

Answer 6

Statement made outside of court.
Repeated in court
To prove the truth of the matter stated.

Question 7

Hearsay evidence will be admissible if it:

Answer 7

Relates to the relevant fact
OR admissible opinion.

Question 8

Party wanting to introduce hearsay evidence in civil proceedings MUST serve a hearsay notice:

Answer 8

On all parties they wish to rely on hearsay evidence.
Notice MUST be served no later than the last day for serving a witness statement.
Within 28 days after service of the hearsay notice, other parties CAN request particulars of evidence.
Party has the right to call the witness responsible for the hearsay evidence for cross-examination OR serve a notice to attack credibility within 14 days of being served the hearsay notice.
Court MUST then consider certain circumstances when estimating the weight of the evidence.

Question 9

Burden of proof:

Answer 9

legal burden on a claimant to provide sufficient evidence to establish all the facts and prove the legal criteria that supports their case.

Question 10

Standard of proof:

Answer 10

civil cases, balance of probabilities (claimant’s version is more likely than the defendant’s version).

Question 11

Opinion evidence:

Answer 11

*CPR states – expert is a reference to a person who has been instructed to give OR prepare expert evidence for the purpose of proceedings.
*Expert evidence is evidence as to matters of a technical or scientific nature AND generally includes an expert’s opinion.
*Expert evidence can be based on opinion rather than fact.
*Evidence of witnesses of fact MUST be confined to their knowledge of the facts and NOT their opinions.
*Expert evidence CAN be permitted in a wide range of claims including, BUT not limited to, professional negligence, PI, IP, IT, shipping, and construction.

Question 12

Duties of experts:

Answer 12

*Duty of experts to help the court on matters within their expertise.
*Duty overrides any obligation to the person from whom experts have received instructions or payment.
*Expert evidence SHOULD be independent, transparent, and objective.
*Expert evidence should assist the court by providing objective, unbiased opinions on matters within their expertise.
*Expert evidence can be rejected if an expert has failed to comply with the expert’s duties to the court.
*Expert evidence will normally be given in the form of a written report
UNLESS parties seek permission for the expert evidence to be given orally too.

Question 13

Single joint experts:

Answer 13

*Expert instructed to prepare a report for the court on behalf of two or more of the parties (including claimant) to the proceedings.
*Where two or more parties wish to submit expert evidence on a particular issue, court CAN direct that the evidence on that issue is to be given by a single joint expert
INSTEAD of there being separate expert witnesses for each of the parties.
*Single joint expert is normal on the fast track.
*Each party instructing their own expert is normal on the multi-track.

Question 14

Discussion between experts -
CPR – court can direct a discussion between experts to require them to take the following two steps:

Answer 14

Identify and discuss the expert issues in the proceedings.
Where possible, reach an agreed opinion on those issues.

Question 15

Discussions between experts AREN’T mandatory UNLESS?

Answer 15

court so directs, common for there to be discussions between experts.

Question 16

Court can specify the issues which?

Answer 16

the experts MUST discuss.

Question 17

Parties MUST consider, with their experts, at an early stage, whether?

Answer 17

there is likely to be any useful purpose in holding an experts’ discussion AND if so, when.

Question 18

Instructing solicitors SHOULD remind experts of?

Answer 18

the relevant areas for discussion AND the need to confine the discussion to areas within their expertise.

Question 19

Solicitors SHOULDN’T influence the content of?

Answer 19

expert discussions.

Question 20

Witness statements:

Answer 20

*Witness statement is a written statement signed by a person that contains evidence which that person would be allowed to give orally.
*Inadmissible or irrelevant material SHOULDN’T be included.
*Witness statement MUST comply with the relevant PD, failing which the court CAN refuse to admit it as evidence.
*Witness is called to give oral evidence; their witness statement will stand as their evidence in chief.
Nothing should be included in the statement which the witness COULDN’T make orally.

Question 21

Witness statement MUST:

Answer 21

Be headed with the name and number of the proceedings and the court division.
State on the first page (top righthanded corner):
Party on whose behalf it’s made.
Initials and surname of the witness.
Number of the statement regarding that witness.
Number of each exhibit referred to
Date statement made.
Written in the witnesses’ own words (if practicable) and in the first person.
State witnesses’ full name, address, occupation, capacity (professional or business)
AND if they are party to the proceedings.
Indicate that statement is from witnesses’ own knowledge, information, and belief.
Be verified by a statement of truth.

Question 22

Witness summary is used where?

Answer 22

a party is unable to obtain a witness statement from a witness the party intends to call.

Question 23

Party CAN apply to the court for permission to serve?

Answer 23

a witness summary INSTEAD of a statement.

Question 24

Affidavits:

Answer 24

Affidavit is a sworn statement of evidence made before a solicitor or other authorised person that the contents are true.

Question 25

Witness statements have generally taken the place of affidavits except in some limited circumstances where affidavits MUST still be used such as:

Answer 25

An application for a search order.
Freezing order.
Order requiring an occupier to permit another to enter their land.

Question 26

Purpose of disclosure is to?

Answer 26

make available evidence which either supports or undermines the respective parties’ cases.

Question 27

Disclosure is a statement by?

Answer 27

a party that a document exists or has existed.

Question 28

All parties to the proceedings are subject to?

Answer 28

a duty to make a reasonable search for documents taking into account all of the circumstances of the case, the value of the dispute
AND the overriding objective of dealing with cases justly.

Question 29

Duty to disclose is limited to a document which is or has been in the party’s control such as:

Answer 29

Physical possession
Right to possession
Right to inspect or take copies of it,
*Document includes all media on which information is recorded such as, tapes, computer records, e-mails, and paper.
*Includes electronic information stored on servers and back-up systems AND can extend to deleted date and metadata.
*Additional factors need to be considered when scoping the reasonable search for electronic documents.

Question 30

Following completion of the reasonable search and identification of the relevant documents, procedure for standard disclosure is as follows:

Answer 30

Complete Form N265 to prepare a numbered list of documents.
Include a disclosure statement signed by the party.
Serve form N265 on the other party by the date set out in the Directions order.
Opposing party will prepare a list of documents they wish to inspect from the list.
Inspection must be allowed within 7 days of receiving the notice.

Question 31

Following receiving the other party’s list, the party is entitled to request in writing within 7 days to inspect the documents in the list,
UNLESS?

Answer 31

they are covered by legal professional privilege OR are no longer in the party’s control.

Question 32

Standard disclosure:

Answer 32

*Standard disclosure requires a party to disclose the documents:
On which it relies
That adversely affect its or another party’s case or support another party’s case.
That it is required to disclose by a relevant PD.

Question 33

Other order is for standard disclosure, each party MUST?

Answer 33

make a reasonable search for documents.

Question 34

Standard disclosure -
Factors which are relevant to the reasonableness of a search include:

Answer 34

Number of documents
Nature and complexity of proceedings.
Ease and expense of retrieval of any particular document.
Significance of any document which is likely to be located during the search.

Question 35

Depending on the track allocated, following disclosure orders can apply
UNLESS otherwise ordered by the court -
Small claims track:

Answer 35

standard provisions for disclosure and inspection DON’T apply.
Usual direction is that each party shall at least 14 days BEFORE fixed date of the final hearing, file and serve on every other party copies of all documents they intend to rely upon.

Question 36

Depending on the track allocated, following disclosure orders can apply
UNLESS otherwise ordered by the court -
Fast-track claims:

Answer 36

standard disclosure timetable applies.

Question 37

Depending on the track allocated, following disclosure orders can apply
UNLESS otherwise ordered by the court -
Multi-track claims (include claim for PI):

Answer 37

standard disclosure timetable applies.

Question 38

Depending on the track allocated, following disclosure orders can apply
UNLESS otherwise ordered by the court -
Multi-track claims (don’t include claim for PI):

Answer 38

standard disclosure is no longer the default disclosure order.

Question 39

Depending on the track allocated, following disclosure orders can apply
UNLESS otherwise ordered by the court -
Procedure is:

Answer 39

File and serve a disclosure report verified by a statement of truth not less than 14 days before first CMC.
Parties to discuss and agree a proposal for the disclosure exercise that meets the overriding objective not less than 7 days before first CMC.

Question 40

Court will decide what order to make for disclosure having in mind the overriding objective and the need to limit disclosure to which is necessary to deal with the case justly such as:

Answer 40

Order dispensing with disclosure.
Order for a party to disclose the documents on which it relies and, at the same time, to request any specific disclosure it requires from any other party.
Order that directs the disclosure to be given by each party on an issue-by-issue basis.
Order for each party to disclose documents which it is reasonable to suppose can contain information that will enable that party to advance its own case or damage the case of any other party or leads to an enquiry that has either of those consequences.
Standard disclosure
Any other order that the court considers appropriate.

Question 41

Multi-track claims in the business and property courts – from 1 October 2022?

Answer 41

a separate disclosure regime applies implementing the procedures that applied under the Disclosure Pilot Scheme.

Question 42

Specific disclosure:

Answer 42

*Party can apply to court for specific disclosure where they feel that the other party hasn’t searched as their duty required.
*Complete Form N244 and attach witness statement for specific disclosure.
*Order could request that a party MUST:
Carry out a search to the extent specified in the order.
Disclose documents or classes of documents.
Disclose any documents located as a result of that search.

Question 43

Before proceedings commence a party CAN apply to court for an order for?

Answer 43

pre-action disclosure.

Question 44

Pre-action disclosure is desirable in order to?

Answer 44

Dispose fairly of the anticipated proceedings.
Assist the dispute to be resolved without proceedings.
Save costs.

Question 45

Court can make an order for pre-action disclosure only where it is satisfied that:

Answer 45

Applicant and the respondent are likely to be parties to subsequent proceedings.
Proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents sought.

Question 46

Even where all of the criteria have been met, court retains?

Answer 46

a discretion whether or not to grant the order.

Question 47

Non-party disclosure:

Answer 47

*Party seeking an order for non-party disclosure will apply to the court for documents from a third party who ISN’T involved in the proceedings.
*Court only has jurisdiction to order non-party disclosure where the documents sought are likely either to –
Support the case of the applicant or adversely affect the case of one of the other parties to the proceedings
AND disclosure is necessary to dispose of fairly of the claim or to save costs.

Question 48

Electronic documents include:

Answer 48

information stored on servers and back-up systems and can extend to deleted date and metadata.

Question 49

Following factors MIGHT be relevant when considering the ease and expense of retrieval of electronic documents:

Answer 49

*Accessibility of electronic documents, servers, back-up systems and other devices or media that can contain such documents, taking into account developments in hardware and software systems.
*Location of relevant documents, data, computer systems, servers, back-up systems and other electronic devices or media that can contain such documents.
*Likelihood of locating relevant data.
*Cost of recovering, disclosing, and providing inspection of any relevant electronic documents.
*Likelihood that electronic documents will be materially altered in the course of recovery, disclosure, or inspection.

Question 50

Some documents are recognised by law as?

Answer 50

privileged

Question 51

Privileged documents MUST be disclosed BUT DON’T have to be?

Answer 51

available for inspection.

Question 52

Document CAN be subject to legal advice privilege if:

Answer 52

*Between solicitor and client
*And sole or dominant purpose is the obtaining of legal advice.

Question 53

Document can be subject to litigation privilege if:

Answer 53

*Between the solicitor or client and a third party.
*Litigation is contemplated or has commenced.
*Document has been created for the sole or dominant purpose of obtaining information or advice with a view to litigation.

Question 54

Without prejudice privilege applies to documents marked without prejudice AND are?

Answer 54

evidence of negotiations to settle with other party.

Question 55

Without prejudice privilege documents often contain?

Answer 55

an offer of settlement and concessions which they DON’T want the court to see.

Question 56

Waiver of privilege:

Answer 56

Privilege belongs to the client.
Solicitor CAN’T waive it without the client’s authority.
Party waives privilege, allows the other party to inspect the document.