Evidence (expert and witness) Flashcards
what evidence is there to prove:
BREACH
CAUSATION
LOSS
Breach - docs / expert (Bolam)
Causation - docs/WS
Loss - docs/EE/WS
is evidence admissible?
ALL evidence relating to the facts are ADMISSIBLE
SPECIAL RULES FOR:
- privileged evidence
- opinion evidence
- hearsay evidence
GOLDEN RULE - WHAT IS THE BEST KIND OF EVIDENCE
DIRECT ORAL TESTIMONY from witness capable of being cross-examined
(anything less is indirect evidence and inherently unreliable so weight attached to it varies)
DEFINE: privileged evidence
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)
DEFINE: OPINION EVIDENCE
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
EXCEPTIONS TO OPINION EVIDENCE
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
DEFINE HEARSAY EVIDENCE (CEA 1995)
- ORAL OR WRITTEN STATEMENT
- made out of court
- adduced in court
- 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)
RULES GOVERNING HEARSAY
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)
court controls evidence before it by giving DIRECTIONS about…
- what issues requires evidence
- nature of evidence
- way evidence is to be placed before court
- limiting cross-examination
- what evidence to allow
purpose of witness statements
WS contains evidence person giving statement would be allowed to give orally at trial
WS stands as a witness’s evidence in chief
DRAFTING WS: if there is a reference to a document not disclosed/solicitor didn’t know about
- CALL CLIENT (to get doc)
- GO THROUGH DISCLOSURE TEST (is it disclosable?)
- IF DISCLOSABLE - MUST disclose (CPR 31.11) in a supplementary list by voluntary disclosure
- IF INSPECTABLE (i.e. not privileged)- remote it from WS or you waive privilege (31.14)
DRAFTING WS: HEARSAY evidence
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
DRAFTING WS: FIRST PARA (SUMMARY JUDGEMENT)
“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”
DRAFTING WS: FINAL PARA (SUMMARY JUDGEMENT)
“In the circumstances, I respectfully request this honourable court to grant judgement in favour of the Claimant/Defendant”
Drafting WS: top right hand corner endorsement
[Claimant/Defendant] [Name] [First/Second/Third] (number of WS) [Initials1, Initials 2] (List of attached docs) [day signed]
DRAFTING WS: first para
- Witness address
- Witness occupation
- if he works for one of the parties
DRAFTING WS: info & belief statement
“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”
DRAFTING WS: exhibits
“I refer to a copy of [X] attached and marked [XY1]”
write that XY1 should be bold
DRAFTING WS: statement of truth
“I believe that the facts stated in this witness statement are true”
witness summaries
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)
if you want to rely on WS at trial you must serve it - failure…
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
witness summons
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
professional conduct issues
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))
finding a suitable expert
- ask around
- check appropriate expertise and experience
- no potential conflict of interest
- instruct as early as possible
- check effective expert witness
- familiar with general duties? attend trial? produce appropriate report?
letter of instruction - privilege
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
expert report - privilege
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)
after exchange of expert report - what happens?
- questions to expert
- discussion between experts
- court questions by expert
single joint expert - if doesn’t favour you
advice:
- put questions to expert
- instruct expert advisor (can ask SJE questions)
- cross examine SJE
- consider settlement
single joint expert - if favour you
advice:
1. servce notice to admit facts re: what SJE concluded
2.consider settlement
