Evidence and Witness Statements

Question 1

Advice on evidence

Answer 1

Assessing the strengths of the case, which evidence to emphasise and opinion as to the prospects of success and the nature of any settlement they would regard as acceptable

Question 2

What is the legal burden of proof general rule?

Answer 2

The claimant has to prove every element of their case

Question 3

Which parts of CPR cover evidence?

Answer 3

Parts 32 and 33

Question 4

Res ipsa loquitur

Answer 4

If the facts proved are more consistent with negligence on the part of the defendant than with other causes, that serves as evidence of negligence

Question 5

When can res ipsa loquitur not assist?

Answer 5

Where the is no evidence to support an inference of negligence and a possible non-negligent cause of injury exists

Question 6

How can the defendant rebut res ipsa loquitur?

Answer 6

By proving he was not negligent even though he cannot prove how the accident happened

Question 7

How can a case been proved evidentially?

Answer 7

By oral evidence at trial, the provision of documentary evidence at trial, by real evidence being available at trial

Question 8

A witness is competent-

Answer 8

If they can lawfully be called to give evidence

Question 9

A witness is compellable-

Answer 9

If they can be made to give evidence even when they are unwilling to do so

Question 10

What is the general rule as regards witnesses?

Answer 10

All persons in civil cases are competent and compellable to give evidence

Question 11

How can a witness be compelled to attend trial?

Answer 11

By way of a witness summons

Question 12

When does a witness summons be served on the witness?

Answer 12

At least seven days before the hearing

Question 13

Direct evidence

Answer 13

Oral evidence of the witness who has perceived the relevant fact or the production of a document which may be the subject of a legal dispute

Question 14

Circumstantial evidence

Answer 14

Evidence which does not directly establish a fact but allows the court to decide whether a certain fact did exist - the court can make some deduction from generalisation about human behaviour

Question 15

Oral evidence

Answer 15

Oral statement of a witness made on oath in open court and offered as evidence of the truth of that which is stated

Question 16

Real evidence

Answer 16

Some material object produced for inspection for the court to draw some inference from its own observation as to the existence, condition or value of the object in question

Question 17

Opinion evidence

Answer 17

Only to be given by experts as they are the only witnesses who are in a better position than the court to form an opinion

Question 18

Hearsay evidence

Answer 18

The repetition by one person of what another person said or wrote OR evidence of an oral or written statement made out of court which is being adduced to prove the truth of the matter stated

Question 19

Four requirements for hearsay

Answer 19

Oral or contained in a document and statement made out of court and hearsay only for the purpose for adducing the evidence is to use it to prove the truth of what is being stated and/or where a witness is unable to attend trial

Question 20

Section 1 CEA 1995

Answer 20

Evidence shall not be excluded in civil proceedings on the grounds that it is hearsay

Question 21

Informal admission

Answer 21

A statement which is adverse to a party to the proceedings and either made by that party or another person for whose word the party has to take responsibility

Question 22

Section 4 CEA 1995 - in considering the weight to be attached to hearsay evidence, the court shall have regard to any circumstances from which an interference can reasonably be drawn as to its reliability and in particular (6)

Answer 22

It would’ve been reasonable and practicable for the adducing party to have called the maker; the statement was made contemporaneously; the evidence involves multiple hearsay; any person involved had any motive to conceal or misrepresent matters; the original statement was an edited account or was made in collaboration with another for a particular purpose; hearsay adduced to prevent a proper evaluation of its weight

Question 23

Any party intending to adduce hearsay under s1-

Answer 23

is required to notify the other party of its intention and on request provide such particulars of that evidence as is reasonable and practicable for the purpose of enabling the other party to deal with any hearsay matter arising from it

Question 24

Should a party not comply with the notice procedure in respect of hearsay-

Answer 24

That in itself will not render the evidence inadmissible

Question 25

Where a person signs a witness statement but are not being called as a witness-

Answer 25

There is no need to serve a hearsay notice as service of the witness statement suffices but the party serving it must confirm that person is not being called as a witness

Question 26

When is the hearsay notice served?

Answer 26

At the same time as the date for serving witness statements as specified in the directions order

Question 27

Can the formal requirements of hearsay notices be excluded?

Answer 27

Yes by agreement/waiver

Question 28

Rule 33.4(1)

Answer 28

Allows party served with a hearsay notice to apply to the court to have the witness cross-examined

Question 29

Section 5(1) CEA 1995

Answer 29

If it is established that the maker of the hearsay statement was not competent at the time it was made, the statement is inadmissible

Question 30

The party wishing to attack the credibility of the evidence containing hearsay-

Answer 30

Must give notice to the other of their intention to do so no more than 14 days after they were served with the hearsay notice

Question 31

If a witness called by a party demonstrates an unwillingness to tell the truth on behalf of the party-

Answer 31

The party may apply to the judge to declare the witness to be a hostile witness

Question 32

If a witness is declared to be hostile-

Answer 32

The party calling them may cross-examine the witness on the facts of the case and prove that the witness has made a previous inconsistent statement

Question 33

Where a previous inconsistent statement is adduced in civil proceedings-

Answer 33

The statement is admissible as evidence of the truth of any fact stated in it

Question 34

A witness may be questioned on a previous consistent statement which is proved for the purpose of-

Answer 34

Rebutting a suggestion that their evidence has been fabricated and such a previous statement shall be admissible as evidence of any fact stated in it

Question 35

Section 11 CA 1968

Answer 35

Admissibility of criminal convictions

Question 36

To rely on a conviction, the conviction must be-

Answer 36

Specifically pleaded

Question 37

A conviction for careless driving in a civil case will-

Answer 37

Reverse the burden of proof of negligence

Question 38

If a conviction comes to light after the statement of case has been served-

Answer 38

An application should be made to amend the statement of case

Question 39

Similar fact evidence is admissible-

Answer 39

If it is relevant to the issue in question

Question 40

Two stages in court’s discretion as regards similar fact evidence

Answer 40

If relevant and therefore admissible; Whether there are good grounds why the court should decline to admit it

Question 41

O’Brien v Chief Constable of South Wales 2005

Answer 41

Matters to be taken into account when deciding if similar fact evidence relevant: whether it would distort the trial, potential probative value vs potential for causing unfair prejudice, burden than its admission would place on the resisting party

Question 42

A party who wishes to challenge the authenticity of any document-

Answer 42

May give notice to the other party requiring them to prove the authenticity of the document

Question 43

Notice to admit facts

Answer 43

Notice forcing the other party to admit for the purpose of that action or matter only any facts mentioned in the notice failing which they may be liable for the costs of proving such facts

Question 44

If a witness statement is not served as the court directs-

Answer 44

The witness may not be called to give evidence at trial unless the court gives permission

Question 45

By rule 32.5(3), the courts have the power to allow a witness-

Answer 45

To amplify their witness statement and give evidence in relation to new matters which have arisen since the witness statement was served on other parties

Question 46

Re New Gadget Shop Ltd v West Coast Capital 2005

Answer 46

If the other side includes inadmissible evidence in its witness statements, an application can be made to have the offending passages struck out

Question 47

Where a party has not been able to obtain a written statement from a witness-

Answer 47

A summary of the evidence that the witness is expected to give may be served with a court’s permission