FLK1 DR definitions

Question 1

What is an unfavourable witness?

Answer 1

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

Question 2

What is a hostile witness?

Answer 2

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.

Question 3

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

Answer 3

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

Question 4

When is a witness summons issued?

Answer 4

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

Question 5

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

Answer 5

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.

Question 6

When should a witness summons be served?

Answer 6

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

Otherwise…court’s permission is required.

Question 7

Is the witness summons binding?

Answer 7

Yes.

Question 8

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

Answer 8

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).

Question 9

Who is the witness summons served by?

Answer 9

Usually by the court.

Question 10

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

Answer 10

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.

Question 11

What is the advantage of serving a summons?

Answer 11

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

Question 12

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

Answer 12

Unusual.

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

Question 13

Who applies for a witness summons?

Answer 13

The solicitors apply for it.

Question 14

Will most witnesses attend the trial voluntarily?

Answer 14

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

Question 15

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

Answer 15

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.

Question 16

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

Answer 16

Sent to the court.

Question 17

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

Answer 17

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

Question 18

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

Answer 18

To ensure the trial is not delayed for any reason.

Question 19

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

Answer 19

Maybe because the witness is uncontactable abroad or…

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

Question 20

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

Answer 20

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

Question 21

What will a written witness summary contain?

Answer 21

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.

Question 22

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

Answer 22

Witness statements are more satisfactory.

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

Question 23

General rule about evidence in civil litigation?

Answer 23

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

Question 24

Exception to the general rule about evidence in civil litigation?

Answer 24

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

Question 25

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

Answer 25

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.

Question 26

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

Answer 26

Inadmissible and irrelevant material.

Question 27

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

Answer 27

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

Question 28

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

Answer 28

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

Question 29

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

Answer 29

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

Question 30

When will the court give direction for exchange?

Answer 30

A few weeks after disclosure + inspection of the documents…

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

Question 31

What will the witness do after statements are exchanged?

Answer 31

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

Question 32

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

Answer 32

Practice Direction attached to CPR 32.

Question 33

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

Answer 33

The court may refuse to admit the WS as evidence.

Question 34

What are the CPR 32 formalities?

Answer 34

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).

Question 35

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

Answer 35

‘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’.

Question 36

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

Answer 36

Statement of case: legal representatives CAN sign this.

Witness statement: legal representatives CANNOT sign this.

Question 37

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

Answer 37

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

Question 38

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

Answer 38

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

Question 39

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

Answer 39

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

Question 40

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

Answer 40

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.

Question 41

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

Answer 41

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

Question 42

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

Answer 42

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.

Question 43

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

Answer 43

Evidence needed to be amplified OR

A new relevant matter arose after the statement was served.

Question 44

What is without prejudice correspondence (communications)?

Answer 44

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

Question 45

Why will the correspondence probably satisfy the disclosure definition?

Answer 45

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

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

Question 46

What is the point of marking correspondence without prejudice?

Answer 46

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

Question 47

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

Answer 47

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

Question 48

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

Answer 48

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

Question 49

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

Answer 49

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.

Question 50

Is privilege the right of the client or their lawyer?

Answer 50

The client.

Question 51

What does it mean if a client waives their privilege?

Answer 51

Giving up that privilege.

Question 52

When does the waiver of privilege occur?

Answer 52

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

Question 53

Example of when the privilege is waived?

Answer 53

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.

Question 54

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

Answer 54

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

Question 55

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

Answer 55

The vulnerability of a party or a witness.

Question 56

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

Answer 56

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

Question 57

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

Answer 57

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