Evidence and Witness Statements Flashcards
Advice on evidence
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
What is the legal burden of proof general rule?
The claimant has to prove every element of their case
Which parts of CPR cover evidence?
Parts 32 and 33
Res ipsa loquitur
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
When can res ipsa loquitur not assist?
Where the is no evidence to support an inference of negligence and a possible non-negligent cause of injury exists
How can the defendant rebut res ipsa loquitur?
By proving he was not negligent even though he cannot prove how the accident happened
How can a case been proved evidentially?
By oral evidence at trial, the provision of documentary evidence at trial, by real evidence being available at trial
A witness is competent-
If they can lawfully be called to give evidence
A witness is compellable-
If they can be made to give evidence even when they are unwilling to do so
What is the general rule as regards witnesses?
All persons in civil cases are competent and compellable to give evidence
How can a witness be compelled to attend trial?
By way of a witness summons
When does a witness summons be served on the witness?
At least seven days before the hearing
Direct evidence
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
Circumstantial evidence
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
Oral evidence
Oral statement of a witness made on oath in open court and offered as evidence of the truth of that which is stated
Real evidence
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
Opinion evidence
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
Hearsay evidence
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
Four requirements for hearsay
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
Section 1 CEA 1995
Evidence shall not be excluded in civil proceedings on the grounds that it is hearsay
Informal admission
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
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)
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
Any party intending to adduce hearsay under s1-
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
Should a party not comply with the notice procedure in respect of hearsay-
That in itself will not render the evidence inadmissible
Where a person signs a witness statement but are not being called as a witness-
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
When is the hearsay notice served?
At the same time as the date for serving witness statements as specified in the directions order
Can the formal requirements of hearsay notices be excluded?
Yes by agreement/waiver
Rule 33.4(1)
Allows party served with a hearsay notice to apply to the court to have the witness cross-examined
Section 5(1) CEA 1995
If it is established that the maker of the hearsay statement was not competent at the time it was made, the statement is inadmissible
The party wishing to attack the credibility of the evidence containing hearsay-
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
If a witness called by a party demonstrates an unwillingness to tell the truth on behalf of the party-
The party may apply to the judge to declare the witness to be a hostile witness
If a witness is declared to be hostile-
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
Where a previous inconsistent statement is adduced in civil proceedings-
The statement is admissible as evidence of the truth of any fact stated in it
A witness may be questioned on a previous consistent statement which is proved for the purpose of-
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
Section 11 CA 1968
Admissibility of criminal convictions
To rely on a conviction, the conviction must be-
Specifically pleaded
A conviction for careless driving in a civil case will-
Reverse the burden of proof of negligence
If a conviction comes to light after the statement of case has been served-
An application should be made to amend the statement of case
Similar fact evidence is admissible-
If it is relevant to the issue in question
Two stages in court’s discretion as regards similar fact evidence
If relevant and therefore admissible; Whether there are good grounds why the court should decline to admit it
O’Brien v Chief Constable of South Wales 2005
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
A party who wishes to challenge the authenticity of any document-
May give notice to the other party requiring them to prove the authenticity of the document
Notice to admit facts
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
If a witness statement is not served as the court directs-
The witness may not be called to give evidence at trial unless the court gives permission
By rule 32.5(3), the courts have the power to allow a witness-
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
Re New Gadget Shop Ltd v West Coast Capital 2005
If the other side includes inadmissible evidence in its witness statements, an application can be made to have the offending passages struck out
Where a party has not been able to obtain a written statement from a witness-
A summary of the evidence that the witness is expected to give may be served with a court’s permission
