Evidence (expert and witness)

Question 1

what evidence is there to prove:

BREACH
CAUSATION
LOSS

Answer 1

Breach - docs / expert (Bolam)

Causation - docs/WS

Loss - docs/EE/WS

Question 2

is evidence admissible?

Answer 2

ALL evidence relating to the facts are ADMISSIBLE

SPECIAL RULES FOR:

• privileged evidence
• opinion evidence
• hearsay evidence

Question 3

GOLDEN RULE - WHAT IS THE BEST KIND OF EVIDENCE

Answer 3

DIRECT ORAL TESTIMONY from witness capable of being cross-examined

(anything less is indirect evidence and inherently unreliable so weight attached to it varies)

Question 4

DEFINE: privileged evidence

Answer 4

Evidence that is protected from inspection in civil proceedings by means of the rules of privilege

E.g. email from solicitor giving advise to client

INADMISSIBLE unless:

• privilege is waived
• privileged thing mentioned in WS (31.14)

Question 5

DEFINE: OPINION EVIDENCE

Answer 5

Evidence of what a witness thinks, believes, or infers in regard to facts as distinguished from personal knowledge of the facts themselves
(anything that isn’t strictly fact)

INADMISSIBLE:

• it is the role of the court to form opinions
• court should not be unduly influenced by opinion of W who might not be as impartial as court
• court draws own inferences from facts

Question 6

EXCEPTIONS TO OPINION EVIDENCE

Answer 6

PERCIEVED FACT (s.3(2) CEA 1972) 
- opinion shorthand for facts

EXPERT EVIDENCE (s.3(1) CEA 1972)

• ONE: must be expert (court decides this) - suitably experienced (and qualified)
• TWO: must give testimony/evidence that is reasonably needed to resolve an issue

Question 7

DEFINE HEARSAY EVIDENCE (CEA 1995)

Answer 7

1. ORAL OR WRITTEN STATEMENT
2. made out of court
3. adduced in court
4. to prove truth in the matter stated

ADMISSIBLE BUT it is indirect evidence so inherently less reliable than direct oral documentary or real evidence

= procedural safeguards to ensure hearsay evidence is carefully scrutinised (weight reduced by s.4 factors)

Question 8

RULES GOVERNING HEARSAY

Answer 8

S.1 CEA 1995 – admissible

S.2 – notice to the other side (deemed on exchange of WS unless one of the exceptions)

s.2 - request particulars

S.3 – apply to call for cross examination

S.4 – weight factors

S.5 – attack credibility (why aren’t they here)

Question 9

court controls evidence before it by giving DIRECTIONS about…

Answer 9

• what issues requires evidence
• nature of evidence
• way evidence is to be placed before court
• limiting cross-examination
• what evidence to allow

Question 10

purpose of witness statements

Answer 10

WS contains evidence person giving statement would be allowed to give orally at trial

WS stands as a witness’s evidence in chief

Question 11

DRAFTING WS: if there is a reference to a document not disclosed/solicitor didn’t know about

Answer 11

1. CALL CLIENT (to get doc)
2. GO THROUGH DISCLOSURE TEST (is it disclosable?)
3. IF DISCLOSABLE - MUST disclose (CPR 31.11) in a supplementary list by voluntary disclosure
4. IF INSPECTABLE (i.e. not privileged)- remote it from WS or you waive privilege (31.14)

Question 12

DRAFTING WS: HEARSAY evidence

Answer 12

admissible but if it is an important piece of evidence - try to get original witness to give WS (and oral testimony in court)

• ask court’s permission to bring in new witness
• amend costs budget

Question 13

DRAFTING WS: FIRST PARA (SUMMARY JUDGEMENT)

Answer 13

“I refer to the application notice in this mater dated [X] and make this statement to answer to it and in opposition to [C/D’s] application for summary judgement”

Question 14

DRAFTING WS: FINAL PARA (SUMMARY JUDGEMENT)

Answer 14

“In the circumstances, I respectfully request this honourable court to grant judgement in favour of the Claimant/Defendant”

Question 15

Drafting WS: top right hand corner endorsement

Answer 15

[Claimant/Defendant]
[Name]
[First/Second/Third] (number of WS)
[Initials1, Initials 2] (List of attached docs)
[day signed]

Question 16

DRAFTING WS: first para

Answer 16

• Witness address
• Witness occupation
• if he works for one of the parties

Question 17

DRAFTING WS: info & belief statement

Answer 17

“I make this statement from matters within my own knowledge or belief save where the contrary appears. Where I refer to matters which I have been told by others, those matters are true to the best of my knowledge and the source of my information appears”

Question 18

DRAFTING WS: exhibits

Answer 18

“I refer to a copy of [X] attached and marked [XY1]”

write that XY1 should be bold

Question 19

DRAFTING WS: statement of truth

Answer 19

“I believe that the facts stated in this witness statement are true”

Question 20

witness summaries

Answer 20

if you cannot serve witness statement - apply to serve witness summary

contains:

• name and address
• evidence that would be included in WS

serve at same time as WS

• use if WS not signed (W died or refuses to sign or cant be found)

Question 21

if you want to rely on WS at trial you must serve it - failure…

Answer 21

witness cannot give oral evidence unless court gives permission

in time application OR
Denton (out of time application)

deadlines can be extended by agreement in writing (3.8) for up to 28 days without court approval

Question 22

witness summons

Answer 22

if concerned witness won’t attend trial or if W is a professional person who may have conflicting appointments

SERVE WITNESS SUMMONS

serve at least 7 days before date witness required to attend court

• can send payment covering travel expenses and compensation or loss of time
• amount paid based on sum payable to witnesses in criminal cases

Question 23

professional conduct issues

Answer 23

false witness statement

• contempt of court for witness (32.14)
• breach O(5.1), (5.2), (5.3)
• warn witness before singing false statment of truth
• inform court immediatly with client’s consent (IB(5.4))
• refuse to act (IB(5.5))

do not call witness u know is untrue (IB(5.9))
Do not INFLUENCE witness (IB(5.10))
DO NOT tamper with evidence (IB(5.11))

Question 24

finding a suitable expert

Answer 24

1. ask around
2. check appropriate expertise and experience
3. no potential conflict of interest
4. instruct as early as possible
5. check effective expert witness
6. familiar with general duties? attend trial? produce appropriate report?

Question 25

letter of instruction - privilege

Answer 25

NOT privileged if relied on (only exception to privilege rules)

BUT court will require disclosure and inspection IF REASONABLE GROUNDS TO CONSIDER STATEMENT OF INSTRUCTIONS IS INACCURATE OR INCOMPLETE

So be careful - make sure no privileged material is attached as that will waive privilege over that

Question 26

expert report - privilege

Answer 26

drafts = litigation privilege
final = privilged but exchange waives privilege

BUT if party decides to call different witness, it must seek court’s permission and must disclose first report (prevents expert shopping)

Question 27

after exchange of expert report - what happens?

Answer 27

1. questions to expert
2. discussion between experts
3. court questions by expert

Question 28

single joint expert - if doesn’t favour you

Answer 28

advice:

1. put questions to expert
2. instruct expert advisor (can ask SJE questions)
3. cross examine SJE
4. consider settlement

Question 29

single joint expert - if favour you

Answer 29

advice:
1. servce notice to admit facts re: what SJE concluded

2.consider settlement