OUP Questions Flashcards
Witness Statements and Evidence
It is four weeks before the trial in a claim arising in negligence. Witness statements were exchanged eight weeks ago. The defendant’s solicitors notify the claimant’s solicitors in writing that the defendant will no longer be relying upon a witness, whose statement was exchanged, as the witness has left their employment and now works for a competitor. The claimant’s solicitors wish to rely on the witness’s statement which they believe to be helpful to the claim.
Which of the following is correct as to whether and how the witness statement may be put in evidence by the claimant?
The claimant may put in the statement as evidence without the permission of the court as it is hearsay evidence.
CPR 32.5(5) makes it clear that a party is entitled to rely on the evidence without the court’s permission. The statement may be relied upon as hearsay evidence in these circumstances.
Witness Statements and Evidence
Following the claimant’s application, the court made an order that, unless the defendant served his witness statements within 21 days, the defence would be struck out. The defendant’s solicitor knew that he would struggle to meet the deadline and, seven days after the court order, telephoned the claimant’s solicitor who agreed to an additional 14 days for service of the amended defence. There was no further correspondence on this issue. No hearing is currently listed for the claim.
Is the agreement made between the parties’ solicitors in accordance with the procedural rules?
No, as the extension must be made by written agreement.
Although it is true that the parties may extend time (see CPR 2.11), such agreement must be in line with the provisions of CPR 3.8(3) and (4). Here the agreement has been made over the telephone and not in writing and so is not in accordance with the rules.
Witness Statements and Evidence
A claimant, a baker, has brought a claim against two defendants in the County Court arising from breach of contract and in negligence concerning a delivery of flour supplied to him by the first defendant. The first defendant had obtained the flour from the second defendant, a farmer. Following service by the claimant on the first defendant of a notice to admit facts, the first defendant admits that the flour supplied to the claimant was contaminated.
Which of the parties may make use of this admission?
Only the claimant may use the admission against the first defendant.
Witness Statements and Evidence
A claimant has brought proceedings in the County Court for breach of contract as he ordered a quantity of goods from the defendant which were not received. In his defence, the defendant states that the goods were dispatched as agreed and that he received a proof of posting receipt, which he has mislaid. In due course, disclosure takes place. The defendant discloses a proof of posting receipt. Upon inspection, the claimant does not believe the receipt to be genuine. The claimant’s solicitor advises that a notice should be served on the defendant requiring the proof of posting receipt to be proved at trial.
What is the best reason why such a notice should be served?
To protect the claimant’s position as otherwise the claimant will be deemed to admit the authenticity of the document.
Witness Statements and Evidence
On the eve of trial, a solicitor is telephoned by her client, the claimant, who says that he has received new information which he wishes to put to the judge at the trial. This information is not contained within his witness statement which was correctly served seven weeks ago.
How should the solicitor advise her client correctly on this point?
The court may allow the client to give evidence in relation to new matters if there is a good reason not to confine the evidence of the witness to the contents of his witness statement.
This is correct as ordinarily when a witness is called to give oral evidence the witness statement stands as their evidence-in-chief. A witness may amplify their witness statement with the permission of the court and give evidence in relation to new matters, but the court will only give permission if there is good reason not to confine the evidence to the contents of the witness statement (see CPR 32.5).
Witness Statements and Evidence
A client, the claimant, is concerned about the reporting of an upcoming trial in which she is keen to protect her reputation and that of her business. There are no grounds upon which the trial may be held in private. The client is particularly worried that witness statements produced at trial may be used by others as evidence to bring claims against her.
Which of the following statements is correct about witness statements which are put in evidence at trial?
Witness statements which have been put in evidence at a trial held in public may be used for purposes other than the proceedings in which they have been served.
Witness Statements and Evidence
A solicitor is advising a client in a civil case. Witness statements are due to be exchanged in two weeks’ time in accordance with the court’s directions. One of the witness statements to be exchanged includes evidence about what the witness was told by his work colleague about the circumstances of an accident giving rise to an injury at work. It is intended that this witness give evidence in due course at trial.
What, if anything, should the solicitor do to ensure that the client will be able to rely on the evidence contained within the witness statement?
The solicitor need take no additional further steps, as serving the witness statement in accordance with the timetabled direction is deemed to be notice of the intention to rely on any hearsay contained within it.
Under Section 2(1)(a) of the Civil Evidence Act 1995, there is no need to give specific notice if the hearsay evidence is contained within a witness statement that is served in line with court directions. A further notice would be needed in the event that the witness was not being called to give evidence. CPR 33.2 provides that, in those circumstances, the party intending to rely on the hearsay evidence must serve the statement and inform the other parties that the witness is not being called to give oral evidence and give the reason why.
Witness Statements and Evidence
A solicitor is advising a client following receipt of a witness statement and a notice from the defendant’s solicitors indicating the defendant’s intention to rely on hearsay evidence although the witness is not being called. The statement includes information that the witness was told by his supervisor that safety procedures were followed correctly at all times. This evidence is central to the case. However, no explanation is provided as to why the witness is not being called and there is no statement from the supervisor. The managing director of the defendant company is being called to give evidence.
What should the solicitor tell the client regarding the weight that is likely to be attached to the hearsay evidence?
The court is likely to consider whether it would have been reasonable and practicable to produce the supervisor as a witness, whether the statement was made contemporaneously with the occurrence of the matters stated, and other relevant factors in determining the weight of the hearsay evidence.
The court will not necessarily disregard the hearsay evidence entirely. Instead, it will evaluate the weight to be attached to it based on the factors listed in Section 4 of the Civil Evidence Act 1995, such as the practicability of producing the original witness and the reliability of the hearsay evidence and the reason why the witness has not been called particularly if it appears that there is an attempt to prevent proper evaluation of is weight.
Expert Evidence
A solicitor is representing the claimant in a personal injury claim. He is considering what advice to give with regard to the use of experts. He believes that the strict requirements of the Pre-Action Protocol for Personal Injury Claims do not apply to the claim.
What is the correct advice which the claimant should be given regarding the instruction of experts in this claim?
The parties should consider using a single expert, jointly instructed and with the costs shared equally.
Not all personal injury claims are covered by the personal injury protocol, which is designed for cases with a value of less than £25,000 and which will be allocated to the fast track. Claims which do not fall into these categories are nonetheless covered by the Practice Direction—Pre-Action Conduct and Protocols which provides at para 7 that if it is necessary to obtain expert evidence, particularly in low-value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.
Expert Evidence
The claimant’s solicitor has received the report of the single joint expert instructed by the parties in a construction dispute which has been allocated to the fast track. The solicitor discusses the findings of the report with her client. The client is uncertain about the report’s findings and wishes to ask the expert questions about them
What is the best course for the claimant to take in these circumstances?
The claimant may put written questions to the expert within 28 days of service which must be for the purpose only of clarification of the report.
he questions must be for the purpose only of clarification of the report unless the court gives permission, or the other party agrees (see CPR 35.6(2)(b) and(c)).
Expert Evidence
The report of a single joint expert is received on 1 May. On 14 June, the defendant’s solicitor, without the claimant’s agreement and without the court’s permission, puts written questions to the expert for the purpose only of clarifying the expert’s report. The expert telephones the solicitor and says that he has no obligation to reply to the questions. The solicitor informs the client, who is annoyed, and asks his solicitor to explain.
What should the solicitor tell his client about the obligation of the expert to reply to the questions?
That the expert is not obliged to reply as the request was not made in time and the permission of the court or the claimant’s agreement must be sought.
Expert Evidence
A solicitor is representing a claimant against two defendants. The claim has been allocated to the multi-track. As there is a significant issue on causation, the court has permitted each party to instruct its own expert. The reports from each of the three experts have now been served. Having reviewed the evidence, the first defendant’s solicitor has persuaded the claimant to discontinue its claim against the first defendant.
Will the claimant be able to rely upon the first defendant’s expert’s report at trial should it wish to do so?
The claimant will be able to rely upon the first defendant’s expert’s report without either the permission of the court or either defendants’ consent.
Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at trial without either the court’s permission or the parties’ consent, so any party may use that expert’s report as evidence at trial (see CPR 35.11).
Expert Evidence
A claimant is injured whilst at work at a car hire company, and against whom she has brought proceedings for personal injury. The claim is allocated to the fast track and directions given. Given the complexity of the causation issue, the parties have been permitted to instruct separate medical experts. Disclosure takes place following which experts’ reports are exchanged. The claimant’s expert refers in his report to a letter from a school where the claimant also works part-time in the evening as a cleaner. The claimant has not disclosed this letter in her list of documents. The defendant’s solicitors request that the letter is provided for inspection.
Must the claimant provide the letter for inspection by the defendant?
The claimant need only give inspection if the request is reasonable, and the defendant applies successfully for an order for inspection.
This follows CPR 31.14(2): ‘a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings’. A right of inspection does not arise in these circumstances unless the court has given an order (see also PD 31A para 7).
Expert Evidence
A claimant has brought a claim for damages for personal injury against the owners of a gym. The claimant slipped and fell in the gym’s changing room and alleges that the slip was caused by the failure of the defendant to install a slip resistant floor. Disclosure has just taken place. The defendant discloses, but states that it is withholding inspection of, the defendant’s site manager’s internal report prepared two days after the claimant’s fall. The purpose of the report was to provide an assessment as to what caused the fall, the safety of the flooring in the changing rooms and advice for improving safety. The report was provided to the defendant’s solicitors one week before proceedings were issued.
Is the defendant entitled to withhold inspection of this report, and for what reason?
No. Inspection cannot be withheld because the purpose of the report was to provide an opinion on the cause of the fall and safety issues relating to the flooring.
The facts loosely follow the facts in Waugh v British Railways Board, which applies when a report is prepared for two purposes—safety and litigation. The dominant purpose here is with regard to safety of the surface of the floor in the changing rooms which is at the heart of the litigation. The litigation purpose must be the dominant purpose for litigation privilege to apply but here the report was prepared two days after the fall and some time before litigation was contemplated and therefore may be inspected (see CPR 31.3).
Expert Evidence
The claimant, a sports coach employed by the defendant, a gym owner, suffered a back injury during the course of her employment. A solicitor is preparing for negotiations with the defendant’s solicitors who have admitted liability in their response to the letter of claim. Proceedings have not yet been issued. The claimant seeks general and special damages, including loss of earnings of £15,000 over a period of six months post-accident. Preparatory to negotiations, the solicitor has a discussion with his client. During those discussions, the client tells her solicitor that she could have returned to work three months post-accident but had wanted to finish landscaping her garden and building a summer house. The jointly instructed medical expert has expressed the view that the period of time absent from work was reasonable. The claimant instructs her solicitor that she is happy to accept the expert’s view.
What is the solicitor’s professional obligations in these circumstances in relation to the forthcoming negotiations with the defendant?
As the issue regarding capacity to work has not been resolved, the solicitor should advise the client that the negotiations cannot proceed until the issue is resolved as the solicitor cannot risk misleading the opponent or the court.
Although it is true in the ordinary course of events that there exists a duty of confidentiality between the solicitor and client, there is also a duty not to mislead and to seek to misuse or influence the evidence (that of the expert here, and of the client). The solicitor always owes a professional duty to act in accordance with the regulatory standards expected which includes the Principles, ie to act in a way that upholds the constitutional principle of the rule of law and the proper administration of justice; with honesty; with integrity; in a way that upholds public trust and confidence in the solicitors’ profession; and in legal services provided by authorised persons. A solicitor should also not misuse or tamper with evidence or attempt to do so which would be the case if the solicitor proceeds to negotiate knowing that the expert evidence is an incorrect representation of the position.
