Evidence of Fact

Question 1

In relation to evidence, what can the court direct as to?

Answer 1

Issues requiring evidence, nature of evidence required, and how evidence is placed before court.

Can also exclude evidence that would otherwise be admissible and limit cross-examination.

Question 2

What is the general rule with evidence of fact?

Answer 2

Any fact which needs to be proved by evidence of a witness is to be proved by oral evidence given in public if at trial, or by evidence in writing if at another hearing.

Question 3

A witness statement will usually stand as…

Answer 3

the witness’s evidence in chief at trial.

Question 4

At what stage does the court usually give directions as to exchange of witness statements?

Answer 4

Allocation and case management stage. Exchange generally follows disclosure and inspection.

Question 5

What happens if a party does not comply with directions for exchange of witness statements within the time limit?

Answer 5

Witnesses may not be called to give oral evidence unless the court permits.

Question 6

Can extensions be agreed without the court’s approval for serving witness statements?

Answer 6

Yes, in writing, extensions of up to 28 days can be agreed without court’s approval, so long as it doesn’t put the hearing at risk.

Question 7

What must parties to if an extension is agreed which influences a subsequent hearing date?

Answer 7

Application to be made to the court under CPR 3 to avoid the risk of the court not approving the agreement at trial.

Question 8

What happens if parties cannot agree an extension?

Answer 8

Application must be made to the court.

Question 9

What happens if parties cannot agree an extension and the witness statement is served late?

Answer 9

Application for relief from sanctions must be made.

Question 10

Can witnesses amplify or give evidence on new matters?

Answer 10

Yes, with the court’s permission.

Court is unlikely to permit amplification or evidence that is late, unjustified change of tack, or to remedy deficiencies.

Question 11

How is evidence dealt with in interim applications?

Answer 11

Any fact which needs to be proved is to be proved in writing.

Court relies solely on witness statement with no cross-examination generally.

Parties can apply for permission to cross-examine.

Question 12

What is the general rule of inadmissibility?

Answer 12

Opinions of witnesses are inadmissible, except perceived facts and expert evidence (Civil Evidence Act 1972, s3).

Question 13

What are the consequences of a false witness statement verified by a statement of truth?

Answer 13

Contempt of court proceedings.

Question 14

What is hearsay?

Answer 14

Oral/written statements made out of court and adduced in court to prove truth of matter stated.

Question 15

If evidence is in a witness statement of a person giving oral evidence at trial, is notice of intention to rely on hearsay required?

Answer 15

No formal notice required as notice of hearsay is deemed served when the witness statements are served on the other party.

Question 16

If evidence is in a witness statement of a person NOT giving oral evidence at trial, is notice of intention to rely on hearsay required?

Answer 16

No formal notice required, but other party must be informed that witness won’t be giving evidence with reasons.

Question 17

What four options do parties have after receiving notice of intention to rely on hearsay?

Answer 17

1. Request particulars of hearsay.
2. Call for cross-examination.
3. Challenge the weight of hearsay.
4. Attack credibility of the absent witness.

Question 18

Are other convictions admissible?

Answer 18

Yes, but proving the offence must be relevant to the issue in proceedings.

Question 19

If a party is required to serve a witness statement for use at trial but cannot obtain one, what must they do?

Answer 19

Apply, without notice, for permission to serve a witness summary.

Question 20

What is a witness summary?

Answer 20

A summary of evidence which would otherwise be included in witness statement, or if evidence not known, matters about which person serving witness summary proposes to question the witness.

Question 21

When must a witness summary be served?

Answer 21

Must be served in the same period that the witness statement would have had to be served.

Question 22

What happens if a party fails to serve a witness statement or summary?

Answer 22

Witness may not be called upon to give evidence unless the court orders otherwise.

Question 23

Statements may only be used for the purpose of the proceedings in which they are served, except…(3 exceptions)

Answer 23

1. If the witness gives consent, in writing, to another use of it.
2. The court gives permission for another use.
3. Statement has been put in evidence at a hearing held in public.

Question 24

When must evidence be given by way of affidavit?

Answer 24

If required by court, rule, PD, or other enactment.

Question 25

When may parties serve notice on another party requiring him to admit facts, or part of the case?

Answer 25

No later than 21 days before trial.

Question 26

Where a party makes an admission, the admission may only be used against him…

Answer 26

In proceedings in which notice to admit is served and by the party who served the notice.

Question 27

Notice to prove a document must be served…

Answer 27

By the latest date for serving witness statement, or within 7 days of disclosure of the document, whichever is later.

Question 28

What is a witness summons?

Answer 28

A document issued by the court requiring the witness to either attend court to give evidence or produce documents to the court.

Question 29

When will a witness summons be issued?

Answer 29

On the date entered on the summons by the court.

Question 30

In relation to summons, when must a party obtain the court’s permission? (3)

Answer 30

1. Where he wishes to have summons issued less than 7 days before trial.
2. Where he wishes to have a summons issued for a witness to attend court to give evidence or produce docs on any date except the date fixed for trial.
3. Have a summons issues for a witness to attend court to give evidence or produce docs at any hearing except trial.

Question 31

By whom must a witness summons be issued?

Answer 31

By the court where the case is proceeding OR court where hearing will be held.

Unless party indicates in writing that he wishes to serve it himself.

Question 32

What is the general rule for witness summons?

Answer 32

Will be binding if served at least 7 days before the date the witness is required to attend court or tribunal.

Question 33

A witness summons is binding until…

Answer 33

Conclusion of the hearing at which their attendance is required,

Question 34

What is a deposition?

Answer 34

An order for a person to be examined on oath before a hearing, usually in front of a judge, examiner of the court, or whoever else the court appoints.

Question 35

A deponent must be offered or paid…

Answer 35

A sum reasonably sufficient to cover expenses in travelling to/from place of examination and such sum by way of compensation for loss of time.

Question 36

How will a deposition be conducted?

Answer 36

As though the witness was giving evidence at trial.

Examiner may conduct it in private if appropriate, and must ensure evidence is recorded in full.

Question 37

What must the examiner do after the deposition?

Answer 37

Send a copy of the deposition to the person who obtained an order for examination and to the court the case is proceeding in.

Question 38

What must the party who obtained the deposition do afterwards?

Answer 38

Send each of the parties a copy of the deposition.

Question 39

Can a deposition be given in evidence at a hearing? If so, how?

Answer 39

Yes.

Party intending to put in evidence must serve notice of intention on every other party and must serve notice at least 21 days before date fixed for hearing.