FLK1 DR definitions Flashcards
What is an unfavourable witness?
A witness not performing as hoped for entirely proper reasons; genuinely forgot a fact or now interpret the situation in a different way.
What is a hostile witness?
A witness failing to come up to proof because they are unwilling to support the party who called them.
They may refuse to answer or tell lies so evidence now differs from statement.
So party calling the person may ask the judge to declare them a hostile witness.
What is the effect of a party asking a judge to declare their witness as a hostile witness?
The advocate can now attack the witness’s credibility or cross-examine them as if they were a witness for the other side.
When is a witness summons issued?
When there is any doubt that a witness will attend voluntarily.
What is a witness summons and what does it require the witness to do?
It is a document issued by the court requiring the witness to:
- Attend court to give evidence and/or
- Produce documents to the court.
When should a witness summons be served?
At least 7 days before the witness is required to attend court.
Otherwise…court’s permission is required.
Is the witness summons binding?
Yes.
What happens is the witness summons is served but the witness fails to appear?
- They may be fined OR
- If in the High Court proceedings, they may be imprisoned for contempt (interfering w/ the administration of justice).
Who is the witness summons served by?
Usually by the court.
What are 2 things the witness should be offered or paid for the witness summons to be effective?
- A reasonably sufficient sum to cover expenses in travelling to and from court AND
- Compensation for loss of time as in Part 34.
What is the advantage of serving a summons?
That if the summons is served + witness doesn’t show up, the court is more likely to be sympathetic to postponing the trial.
Is it usual or unusual to serve a witness summons to an expert? And why?
Unusual.
Because they have a duty to notify those instructing them, of their availability.
Who applies for a witness summons?
The solicitors apply for it.
Will most witnesses attend the trial voluntarily?
Yes, after all, they’ve already co-operated in the case by providing a witness statement.
What should the witness be notified of and told, to ensure there are no issues on the day?
- Be asked at an early stage if there are any dates they can’t attend +
- Be notified of the trial date without delay.
Who are the details of the witness’s availability sent to?
Sent to the court.
How is the witness’s availability sent to the court?
- On the directions questionnaire +
- In the pre-trial checklists as the case approaches its final hearing.
Why is it important to know about the witness’s availability?
To ensure the trial is not delayed for any reason.
Why would it sometimes be difficult to obtain a witness statement?
Maybe because the witness is uncontactable abroad or…
Maybe because it will be against their current employer + they fear being dismissed.
What happens in the circumstances where a witness statement is difficult to be obtained?
The party can apply to the court WITHOUT NOTICE for an order to serve a WRITTEN WITNESS SUMMARY.
What will a written witness summary contain?
- the witness’s name and address +
- Evidence they can provide, if known…
2a. OR if not known, the relevant disputed issues for questioning at trial.
What do parties prefer and why? Witness statements or witness summons?
Witness statements are more satisfactory.
But witness summons may be useful if the alternative is no evidence at all.