Evidence of Fact

Question 1

Between case management and trial, the parties prepare and exchange evidence. This can take place in what three stages?

Answer 1

1. Exchange of potential documentary evidence (disclosure and inspection).
2. Evidence of witness of fact
3. In some cases, expert evidence.

Question 2

Facts in issue must be proved by admissible evidence. What are the three types of admissible evidence?

Answer 2

1. Documents
2. Witness evidence
3. Real evidence - `real’ evidence.

Question 3

What are the two types of witnesses?

Answer 3

Witnesses of fact: direct evidence by a witness of what the have perceived with their own senses.

Expert witnesses: evidence of matters of opinion within their expertise.

Question 4

Can the court control evidence?

Answer 4

Yes, it has a broad discretion to control the evidence by giving directions as to:

*The issues on which it requires evidence

*The nature of evidence it wants

*The way the evidence is to be placed before court.

Additionally, the court can exclude evidence and limit-cross examination.

Question 5

What is the general rule in relation to any fact which needs to be proved by the evidence of witnesses at trial?

Answer 5

It will be oral evidence.

Question 6

What is a witness statement?

Answer 6

It is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

Question 7

What is the purpose of witness statements?

Answer 7

It is exchanged with the other parties, saving time at costs at trial. It also helps to facilitate settlement.

Question 8

What does it mean that the witness statement usually stands as the witnesses `evidence in chief’?

Answer 8

This means the witness will be asked to confirm the truth of the contents of the statement in the witness box.

The other party’s counsel can then cross-examine the witness.

The witness will then be re-examined by their own party.

Question 9

When will the court usually give directions as to the exchange of witness statements?

Answer 9

At allocation and case management stage.

Question 10

Must parties comply with any direction for exchange of witness statements and what will the direction usually include?

Answer 10

Yes, parties must comply. Additionally, it will usually include a date for exchanging the witness statements.

Question 11

In addition to containing a date for exchange, what can directions also relate to?

Answer 11

*Date of exchange with the other party

*Limiting the issues

*Identifying the witnesses whose evidence may be used

*Limiting the number, length or format of witness statements

*Specifying the order in which witness statements are to be served

Question 12

If a party has served a witness statement and wishes to rely on it, what must it do?

Answer 12

It must call the witness to give oral evidence at trial or put in the statement as hearsay evidence.

Question 13

If a witness statement (or witness summary) for trial is not served within time, what are the consequences?

Answer 13

The witness may not be called to provide evidence unless the court gives permission.

Question 14

Should the disclosure documents be reviewed prior to finalising the witness statements?

Answer 14

All the disclosure documents must be reviewed prior to finalising witness statements as witnesses may need to refer to documents in their evidence.

Question 15

What extension of time can the parties agree to in relation to serving witness statements?

Answer 15

The parties can agree in writing extensions of up to 28 days for serving and filing (if necessary) without the need for court approval provided the extension does not put the hearing at risk.

Question 16

What must the parties do if an extension of time is agreed before witness statements are due to be served but does have an effect on a subsequent key date?

Answer 16

An application to the court for extension should be made to avoid the risk of the court not approving the agreement at trial.

Similarly, if an extension cannot be agreed between the parties before witness statements are due to be served, an application to court should be made.

Question 17

What should the parties do if no extension is agreed in relation to serving witness statements and the statements are served late?

Answer 17

An application for relief from sanctions would need to be made. i.e. an application for relief that the witness may not be called to give evidence.

Question 18

Is it possible for the witness to apply to give further evidence than the witness statement?

Answer 18

Yes, rather than the witness statement standing as the only evidence in chief, a witness giving oral evidence at trial, may with permission of the court, amplify the witness statement or give evidence in relation to new matters that have arisen since the witness statement was served.

Question 19

When is the court unlikely to permit the amplification of evidence?

Answer 19

The court is unlikely to permit the amplification of evidence that is essentially late, unjustified change of tack or to remedy deficiencies.

Question 20

Will interim applications require witness statements?

Answer 20

The vast majority of interim applications need to be supported by written evidence to justify the application.

Additionally, the respondent will normally wish to rely on written evidence to oppose the application.

Unless the written evidence is contained within a statement of case or an application notice verified by a statement of truth, it will often be in a witness statement and address the issues in the interim application only.

Question 21

What is the general rule in relation to any fact which needs to be proved by the evidence of a witness other than at trial?

Answer 21

It must be proved by their evidence in writing.

Generally, at the interim application witnesses do not `give evidence’. However, any party may apply for permission to cross-examinate the person giving evidence (unusual).

Question 22

What is the content of a witness statement?

Answer 22

*A witness statement should cover every fact that needs to be proved by the witness evidence.

*it must be in the witnesses own words.

*the Lawyer `proofs’ the witness by interview, produces a draft statement and then allows the witness to amend as appropriate.

Question 23

What is the general rule in relation to opinion evidence?

Answer 23

Opinions of witnesses are not admissible. This is because the role of the court is to form opinions and the court may be unduly influenced by the opinion of a witness who may not be as impartial as the court.

Question 24

What are the exceptions to inadmissibility of opinion evidence?

Answer 24

1. Perceived facts; and
2. Expert opinion

Question 25

What is the consequences of false statements in a witness statement?

Answer 25

A witness statement must be verified by a statement of truth, therefore, a witness who makes a false statement in the witness statement without honest belief in the truth of that statement, may face proceedings for contempt of court.

It is therefore prudent to warn clients of this before they sign.

Question 26

Can a witness statement be used in other proceedings?

Answer 26

No, a witness statement may only be used for the proceedings in which it is served unless the witness or court has given permission for some other use or it has been put in evidence at a hearing held in public.

Question 27

What is an endorsement in a witness statement and why is it helpful?

Answer 27

In the course of proceedings, there may be many witness statements given by or on behalf of the parties for different reasons. The endorsements help the parties identify and navigate through the various witness statements.

The endorsement includes:

*Party relying on witness
*Initial and name of witness
*Number of statement
*Exhibits
*Date of signing
*Date of translation (if relevant).

Question 28

Can a company make a witness statement?

Answer 28

No, a witness statement is always given by a specific individual and must be signed by that person.

Question 29

What does the opening paragraphs of a witness statement include?

Answer 29

a. witness name

b. witness home address (or position, employer name and address if made in business capacity)

c. occupation

d. fact that witness is a party / employee of a party

e. process through which the statement was prepared e.g. by telephone.

Also includes an information and belief paragraph.

Question 30

Can the client refer to documents in its witness statement?

Answer 30

Yes, these should be verified and identified by the witness and remain separate from the witness statement.

Where a witness refers to an exhibit, they should state `I refer to the [description of exhibit] marked [reference]’.

Question 31

What does the witness statement end with?

Answer 31

The witness statement ends with a statement of truth and is always signed by the witness themself.

Question 32

What are the extra paragraphs that need to be included a witness statement being used for other reasons than trial?

Answer 32

1. One near the beginning after the information and belief para, confirms the reason for the statement.
2. At the end of the witness statement before the statement of truth and confirms what the witness would like the court to do in relation to that application.

Question 33

What are the additional rules in relation to witness statements and when do they apply?

Answer 33

There are additional rules for witness statements where both the following criteria are satisfied:

1. The statement is for use at trial (i.e. not witness statement for interim hearing); and
2. The trial is to take place in the Business and Property Courts.

*The statement must identify what documents the witness has referred to for the purpose of providing the evidence set out in their witness statement.

*As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case.

*The statement must include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.

Question 34

What are affidavits?

Answer 34

Affidavits serve the same purpose as witness statements, but they take a different form and must be sworn before a person authorised to administer affidavits.

Question 35

When must an affidavit be used?

Answer 35

Affidavits must be used in an application for a search order or a freezing injunction, and in any other situation where a rule, order or PD requires.

Question 36

When may a party choose to give evidence by affidavit?

Answer 36

A party may choose to give evidence by affidavit at a hearing other than a trial if they wish to do so.

Question 37

What is the person called who gives an affidavit?

Answer 37

Deponent

Question 38

What key wording is included in an affidavit?

Answer 38

`state on oath’

exhibit wording = `there is now shown to me marked “CH2” ‘

Question 39

What is a jurat?

Answer 39

It is a statement at the end of the affidavit which authenticates the affidavit. It must:

*be signed by all deponents

*be completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed underneath)

*contain the full address of the person before whom the affidavit was sworn

*follow immediately on from the text and not to be put on a separate page.