Evidence of Fact Flashcards
Scenario: D appears for trial, the C main witness give short witness statement but fails to mentioned vital evidence, what can C do to get this evidence before the court?, how can the D stop this?
The WS will stand as EIC unles court order otherwise. When WS is prep it is essentially everything a witness is deal to with is contained within the WS (its comprehensive)
But CPR 32.4- Witness may amplify his statement and give evidence not mentioned in WS or in response to matters dealt by another party BUT ONLY IF COURT GIVES PERMISSION
Court reluctant to give permission for amplification where:
a) last min change of tack
b) attempt to remedy defense in WS
(Must SEE WOULD IT BE PREJUDICAL AGAISNT DF)
Where a original doc is disclosed as part of standard disclosure and other party wants to dispute authenticity of it, must it be brought to trial?
A party is deemed to admit any doc disclosed in a list of doc is genuine unless he serves notice that he requires the doc to be proved at trial (CPR 31.6).
Without such a notice, party will be taken to admit that document as it its
Where challenging authenticity, A NOTICE SHOLD BE SERVED ON THE C, compelling the party to show proof of it (CPR 32.19) it MUST be served at the latest date for serving WS or within 7 days of disclosure of the doc whichever is later.
Where a non-party has the document, and a party wants to rely on that doc, can seek in advance disclosure from that non-party (CPR 31.17) and then serve a SUMMOSN REQUIRING the non-party to produce the ori doc to the court(CPR 34.2)
Where a D want get witness evidence, but the witness has vanished without leaving any note. What Can the D do?
Where no witness and no record what he said, can rely on hearsay provisions.
If there is no record cant give witness summary
Where a D want get witness evidence, but the witness has vanished without leaving any note. What Can the D do?
But this time the Witness refuse to make a statement
CPR 32.9
Provide a witness summary, where a party is required to serve a WS but cnt obtain one, they may APPLY WITHOUT NOTICE FOR PERMISSION to serve a WITNESS SUMMARY instead
The Witness Summary is summary of:
1) the evidence which go in WS or
2) Parties serving the summary do not know what evidence would be given, the areas about which he proposed to question the WS
If WITNESS SUMMARY is not served in respect of this witness then the witness CANNOT BE CALLED TO GIVE ORAL EVIDENCE unless COURT GIVE PERMISSION (CPR 32.10)
Where the Witness sign the WS, but refuse to go to court
Only when very serious, need to issue a witness summons (CPR 34.2)
WS is issued by the court and requires the witness to:
a) attend court to give evidence and/or
b) produce doc to court
Must be served at least 7 DAYS before the date on which the witness is required to attend court (CPR 34.5(1). Its binding on the Witness if the witness fails to attend court he will be found contempt
If party wish to issue a summon must be LESS then 7 days before the trial, COURT PERMISSION needed.
The witness then needs to be offered or paid
a) sum sig to cover tral exp
b) sum in recognition of compensation for the loss of time when they are at court (CPR 34.7)
If a party who has served WS and wishes to rely at trial on the evidence of the witness who made the statement, HE MUST CALL THE WITNESS TO GIVE ORAL EVIDENCE unless the court orders to put evidence as HEARSAY
If a party who serves WS does not use it as oral evidence at trial or as hearsay evidence, any party may put the WS in as hearsay evidence
Witness summary
Where the court has directed a party to serve WS for use at trial BUT that party has been unable to obtain one from the relevant witness, the party MAY apply without NOTICE for permission to serve a WITNESS SUMMARY instead
THERE IS NO STATMENT OF TRUTH FOR WITNESS SUMMARY, so it has less weight then WS
Where a key witness is ill or unable to travel, the solution is A DEPOSITION ( IF W outside the jurisdiction a letter of req must be sent to the judicial authorities of the country they in)
The party applies for an order that the witness - “ The deponent” be examined before the hearing. W will be oath before judge. The deponent get expenses for making the deposition
A deposition is a legal procedure where a witness or party makes an out-of-court statement under oath
Using Deposition as evidence
The deposistion may then be given in evidence at hearing unless the court orders otherwise
1) notice of intention to use the deposition must be served on every other party at least 21 DAYS before the hearing
2) the court may require D to attend hearing and give oral evidence
3) D is then treated as WS at trial
Deposition only made where:
1) interest of justice
2) public
3) nature of any expert medical evidence in statement
4) nature of any confidential info
32.5.2 Amplication of evidence of WS
The court will only give permission to amplify WS or give evidence in relation to new matters where
“if GOOD REASON” not to confine to WS - Supplementary EIC
Circumstances where witness wish to amplify their WS
-> where events occurred or matters are discovered, aft their statements were served
or
-> Where response to matters dealt with WS of witness of other parties are req
Rmbr well for witness sumamry do we need notice for permission to serve a witness summary
The party may apply WITHOUT NOTICE, for permission to serve a witness summary instead (make interim application)
Extending time limit for exchanging WS
Where order/rule is backed by sanction, as here the time for complying can only be EXTENDED BY AGM BETWEEN THE PARTIES: If prior written agm UP TO 28 DAYS, don’t put risk to hearing date.
