FLK1 DR definitions Flashcards

1
Q

What is an unfavourable witness?

A

A witness not performing as hoped for entirely proper reasons; genuinely forgot a fact or now interpret the situation in a different way.

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2
Q

What is a hostile witness?

A

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.

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3
Q

What is the effect of a party asking a judge to declare their witness as a hostile witness?

A

The advocate can now attack the witness’s credibility or cross-examine them as if they were a witness for the other side.

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4
Q

When is a witness summons issued?

A

When there is any doubt that a witness will attend voluntarily.

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5
Q

What is a witness summons and what does it require the witness to do?

A

It is a document issued by the court requiring the witness to:

  1. Attend court to give evidence and/or
  2. Produce documents to the court.
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6
Q

When should a witness summons be served?

A

At least 7 days before the witness is required to attend court.

Otherwise…court’s permission is required.

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7
Q

Is the witness summons binding?

A

Yes.

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8
Q

What happens is the witness summons is served but the witness fails to appear?

A
  1. They may be fined OR
  2. If in the High Court proceedings, they may be imprisoned for contempt (interfering w/ the administration of justice).
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9
Q

Who is the witness summons served by?

A

Usually by the court.

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10
Q

What are 2 things the witness should be offered or paid for the witness summons to be effective?

A
  1. A reasonably sufficient sum to cover expenses in travelling to and from court AND
  2. Compensation for loss of time as in Part 34.
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11
Q

What is the advantage of serving a summons?

A

That if the summons is served + witness doesn’t show up, the court is more likely to be sympathetic to postponing the trial.

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12
Q

Is it usual or unusual to serve a witness summons to an expert? And why?

A

Unusual.

Because they have a duty to notify those instructing them, of their availability.

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13
Q

Who applies for a witness summons?

A

The solicitors apply for it.

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14
Q

Will most witnesses attend the trial voluntarily?

A

Yes, after all, they’ve already co-operated in the case by providing a witness statement.

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15
Q

What should the witness be notified of and told, to ensure there are no issues on the day?

A
  1. Be asked at an early stage if there are any dates they can’t attend +
  2. Be notified of the trial date without delay.
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16
Q

Who are the details of the witness’s availability sent to?

A

Sent to the court.

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17
Q

How is the witness’s availability sent to the court?

A
  1. On the directions questionnaire +
  2. In the pre-trial checklists as the case approaches its final hearing.
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18
Q

Why is it important to know about the witness’s availability?

A

To ensure the trial is not delayed for any reason.

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19
Q

Why would it sometimes be difficult to obtain a witness statement?

A

Maybe because the witness is uncontactable abroad or…

Maybe because it will be against their current employer + they fear being dismissed.

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20
Q

What happens in the circumstances where a witness statement is difficult to be obtained?

A

The party can apply to the court WITHOUT NOTICE for an order to serve a WRITTEN WITNESS SUMMARY.

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21
Q

What will a written witness summary contain?

A
  1. the witness’s name and address +
  2. Evidence they can provide, if known…

2a. OR if not known, the relevant disputed issues for questioning at trial.

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22
Q

What do parties prefer and why? Witness statements or witness summons?

A

Witness statements are more satisfactory.

But witness summons may be useful if the alternative is no evidence at all.

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23
Q

General rule about evidence in civil litigation?

A

Any fact upon which a party intends to rely must be proved at trial by oral evidence.

24
Q

Exception to the general rule about evidence in civil litigation?

A

Rule is modified in civil litigation as most of the evidence is dealt with in writing.

25
Q

Under Part 32, what should a party wishing to call a witness do?

A

The party must serve a witness statement to the other parties setting out the facts the witness would be allowed to give orally at trial.

26
Q

What is excluded in the witness statement that a party sends to the other parties?

A

Inadmissible and irrelevant material.

27
Q

What happens to the witness if the statement is not served for any reason?

A

The witness will only be allowed to speak at trial with the court’s permission, which is rare.

28
Q

Who gives directions as to when + how witness statements are to be exchanged?

A

Once the case has been allocated to a track, the courts gives directions, usually completed simultaneously/same time.

29
Q

Why is the directions for exchange of a witness statement completed simultaneously?

A

To prevent 1 party from having an advantage of seeing the other party’s witness statement first.

30
Q

When will the court give direction for exchange?

A

A few weeks after disclosure + inspection of the documents…

…but it varies depending on the complexity of the matter.

31
Q

What will the witness do after statements are exchanged?

A

It gives the witness an opportunity to review their evidence after taken into account any documents that have been inspected.

32
Q

What rule governs the formalities of a witness statement (WS) and the form of them?

A

Practice Direction attached to CPR 32.

33
Q

What happens if the WS fails to comply w/ these formalities in CPR 32?

A

The court may refuse to admit the WS as evidence.

34
Q

What are the CPR 32 formalities?

A

A. The statement should include the proceedings title, witness name, statement number, and date in the top right corner.

B. The opening paragraph should include the witness’s address, occupation, whether the statement is part of their employment or business, the business name, and their participation in the proceedings.

C. Paragraphs should be numbered using figures, including dates, and formatted as ‘5 people’, for example, 16 January 2022, not 16.01.2022.

D. The statement should typically follow the chronological order of the events.

E. The witness statement is a written record of the individual’s request for evidence, replacing oral testimony in court to save time.

F. The statement should be written in the 1st person and primarily expressed in the witness’s own words.

G. The witness must specify which statements are their knowledge and information sources, and detail the preparation process, whether in person or over the phone, for their statements.

H. Any documents that are attached are formally exhibited, for example, ‘AP1’.

I. Under PD 32 para 20.2, it must be verified by a statement of truth in the format: (another flashcard).

35
Q

What is the statement of truth verified at the end of a WS? What format should it be?

A

‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’.

36
Q

Can a legal representative sign a statement of case OR a witness statement?

A

Statement of case: legal representatives CAN sign this.

Witness statement: legal representatives CANNOT sign this.

37
Q

What are the provisions if a witness statement cannot be given in English?

A

The statement should be drafted in the witness’s own language with the date and details of the transaction being included in the statement.

38
Q

What happens after a WS is served on the other side?

A

The witness will usually be called to give oral evidence at trial.

39
Q

Before the hearing, does the judge read the trial bundle?

A

Yes, the trial bundle includes all the WS that were exchanged.

40
Q

What does the witness do when they go into the witness box?

A

Take oath or affirm.

Then shown a copy of their WS + confirm that its contents are true.

Then they say everything in their statement which stands as their evidence (examination) -in-chief.

41
Q

What happens after the witness gives their examination-in-chief?

A

Unless the court gives permission for addition E-I-C, then the witness is subject to cross-examination.

42
Q

What is the general rule and exception of a witness statement being used at trial?

A

General rule: statement must be comprehensive because the witness cannot add to it at trial.

Exception: Unless the court gives permission. Only if the judge is satisfied there is a good reason why the evidence was not dealt w/ in the statement itself.

43
Q

When would the judge allow a witness to ass to their statement at trial?

A

Evidence needed to be amplified OR

A new relevant matter arose after the statement was served.

44
Q

What is without prejudice correspondence (communications)?

A

Recording info as part of the party’s genuine attempt to settle a case.

45
Q

Why will the correspondence probably satisfy the disclosure definition?

A

Will likely to set out the strengths of the party’s case +

Also contain concessions that are adverse to their case + support the opponent.

46
Q

What is the point of marking correspondence without prejudice?

A

So that the trial judge is unaware of the contents, whereas, the disclosure process is just between the parties.

47
Q

What happens to the correspondences between the parties that meet the test for standard disclosure?

A

These documents marked without prejudice should be disclosed + no privilege from inspection claimed.

48
Q

Why is the ‘ability to withdraw’ an advantage of mediation?

A

Because if the client is unhappy with the progress, mediation will allow them to withdraw at any time.

49
Q

Why is the ‘ability to withdraw’ also a disadvantage of mediation?

A

1 party who decides to walk away: pleased they can do so.
But the other party is likely to be unhappy at the time + money expended without a solution.

50
Q

Is privilege the right of the client or their lawyer?

A

The client.

51
Q

What does it mean if a client waives their privilege?

A

Giving up that privilege.

52
Q

When does the waiver of privilege occur?

A

Often during litigation because that is the only way to advance the proceedings.

53
Q

Example of when the privilege is waived?

A

A party’s solicitors drafting statements of case + witness statements, they are privileged from inspection, but once served on the other side, the privilege is waived.

54
Q

When does the general duty to make a client aware of all relevant information NOT apply?

A

If that info is contained in a privileged document that has been mistakenly disclosed (SRA Code 6.4 (d)).

55
Q

What is said to impede the overriding objective or goal of enabling the court to deal with a case justly?

A

The vulnerability of a party or a witness.

56
Q

What factors does the CPR list which may make a person vulnerable?

A
  1. Communication or language or literacy difficulties.
  2. Physical disability or impairment.
  3. Health condition.
57
Q

What does the court do when they identify a vulnerable witness?

A

They may order appropriate provisions like allowing parties or witnesses giving evidence remotely by video conference or questioning through intermediary like a translator.