Evidence of Fact Flashcards
In relation to evidence, what can the court direct as to?
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.
What is the general rule with evidence of fact?
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.
A witness statement will usually stand as…
the witness’s evidence in chief at trial.
At what stage does the court usually give directions as to exchange of witness statements?
Allocation and case management stage. Exchange generally follows disclosure and inspection.
What happens if a party does not comply with directions for exchange of witness statements within the time limit?
Witnesses may not be called to give oral evidence unless the court permits.
Can extensions be agreed without the court’s approval for serving witness statements?
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.
What must parties to if an extension is agreed which influences a subsequent hearing date?
Application to be made to the court under CPR 3 to avoid the risk of the court not approving the agreement at trial.
What happens if parties cannot agree an extension?
Application must be made to the court.
What happens if parties cannot agree an extension and the witness statement is served late?
Application for relief from sanctions must be made.
Can witnesses amplify or give evidence on new matters?
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.
How is evidence dealt with in interim applications?
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.
What is the general rule of inadmissibility?
Opinions of witnesses are inadmissible, except perceived facts and expert evidence (Civil Evidence Act 1972, s3).
What are the consequences of a false witness statement verified by a statement of truth?
Contempt of court proceedings.
What is hearsay?
Oral/written statements made out of court and adduced in court to prove truth of matter stated.
If evidence is in a witness statement of a person giving oral evidence at trial, is notice of intention to rely on hearsay required?
No formal notice required as notice of hearsay is deemed served when the witness statements are served on the other party.
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?
No formal notice required, but other party must be informed that witness won’t be giving evidence with reasons.
What four options do parties have after receiving notice of intention to rely on hearsay?
- Request particulars of hearsay.
- Call for cross-examination.
- Challenge the weight of hearsay.
- Attack credibility of the absent witness.
Are other convictions admissible?
Yes, but proving the offence must be relevant to the issue in proceedings.
If a party is required to serve a witness statement for use at trial but cannot obtain one, what must they do?
Apply, without notice, for permission to serve a witness summary.
What is a witness summary?
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.
When must a witness summary be served?
Must be served in the same period that the witness statement would have had to be served.
What happens if a party fails to serve a witness statement or summary?
Witness may not be called upon to give evidence unless the court orders otherwise.
Statements may only be used for the purpose of the proceedings in which they are served, except…(3 exceptions)
- If the witness gives consent, in writing, to another use of it.
- The court gives permission for another use.
- Statement has been put in evidence at a hearing held in public.
When must evidence be given by way of affidavit?
If required by court, rule, PD, or other enactment.
When may parties serve notice on another party requiring him to admit facts, or part of the case?
No later than 21 days before trial.
Where a party makes an admission, the admission may only be used against him…
In proceedings in which notice to admit is served and by the party who served the notice.
Notice to prove a document must be served…
By the latest date for serving witness statement, or within 7 days of disclosure of the document, whichever is later.
What is a witness summons?
A document issued by the court requiring the witness to either attend court to give evidence or produce documents to the court.
When will a witness summons be issued?
On the date entered on the summons by the court.
In relation to summons, when must a party obtain the court’s permission? (3)
- Where he wishes to have summons issued less than 7 days before trial.
- 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.
- Have a summons issues for a witness to attend court to give evidence or produce docs at any hearing except trial.
By whom must a witness summons be issued?
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.
What is the general rule for witness summons?
Will be binding if served at least 7 days before the date the witness is required to attend court or tribunal.
A witness summons is binding until…
Conclusion of the hearing at which their attendance is required,
What is a deposition?
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.
A deponent must be offered or paid…
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.
How will a deposition be conducted?
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.
What must the examiner do after the deposition?
Send a copy of the deposition to the person who obtained an order for examination and to the court the case is proceeding in.
What must the party who obtained the deposition do afterwards?
Send each of the parties a copy of the deposition.
Can a deposition be given in evidence at a hearing? If so, how?
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.
