Preparation for Proof Flashcards
What is the procedure for the preparation for proof?
The most common cause of disaster at the proof is that the evidence does not match your facts.
The second common is that you do not have a record, e.g. Pleadings for the evidence which you releaised you need to support your case.
Must have sufficient evidence and that evidence you have is of adequate quality.
These are necessarily essential elements in proper preparation for the proof.
The first thing to note is the extend to which the proof has actually been allowed (sheriff can indicate at options hearing that the proof will be on certain topics only).
Parties can agree this in the appropriate admissions or on recorded agreement. The sheriff can then order that the proof be on certain topic or topics which are the only questions of fact which remain in dispute.
Another thing which can happen in terms of intimadating the scope of the proof is that the court can divide up the merits and quantum.
In a damages act in particular the court might be persuaded that it is sensible and sufficient to have a proof only about whether there has been a breach of contract or a breach of duty. Once this has been decided if the answer is in the negative then that is the end of the case. If the court find that there has been a breach then further procedure is ordered on the question of damages heading towards a separate proof in which the issue is quantum.
If the question of breach of duty can be dealt with fairly quickly and efficiently, the rationale being that it brings the action to an end where the defender is successful. That makes all the more sense if by contrast with the position on the merits the damages position is very complicated. Why bother have a hearing including damages when it is possible that the merits might be resolved without a need for that inquiry.
The other thing the sheriff can do at the options hearing is to order to the parties to lodge a joint minute of admissions — this is a formal contract between the parties admitting their agreement to certain questions of fact.
By contrast to joint minute, the sheriff ordering a joint minute is a different thing altogether, this is telling the parties to reduce an agreement to writing. It hardly ever happens but if theoretcially a solicitor makes an oral admission of fact and the other side makes an admission assenting to or agreeing to this fact, the sheriff might feel it is wise to capture the moment and might say to the parties: you have stated orally that your position is X and your opponent agrees, I want this formally recorded in a joint minute.
Orders at options hearing defining scope and requiring joint minute OCR 9.12
Inspection of documents OCR 9A.2
Another thing which can be sorted out in advance is who is going to lead their evidence first. This is normally determined by where the onus of proof lies and the default position is that the pursuer should make the running as if he/she fails to make their case then that is the end of the matter.
So in the absence of any order by the court dealing with who leads at the proof, the pursuer goes first.
There are some cases where it is apparent that the main onus is on the defender e.g. In a personal injury claim where the defender admits primary liability but insists on plea of contributory negligence, where that is the position as disclosed at the options hearing, the pursuer might ask the to sheriff to ordain the defender to lead at proof.
There are other cases where as a result of the presumptions the onus actually lies with the pursuer, if you are in that territory and you are the pursuer you may ask the sheriff to ordain defender to lead as there is a tactical advantage in being second in the order in having to lead your evidence.
When a proof is ordered at options hearing you are expected to wait several months and complete things during this time.
What is the requirement of the inspection of documents?
The first thing imposed on you by the rules are:
1. Inspection of documents OCR 9A.2 — the rule says that within 14 days of allowance of the proof the party must compile a list of documents which they intend to rely on at proof. This is notice to opponent of documents that you intend to rely on. This triggers a right which the other parties have to inspect the documents on the list which are in the possession of the person.
The sanction for not preparing a full list is that when you come to the proof and try to use a document that is not not he list you will need the express permission of the court to use it and the court will attach conditions to this, e.g. If it is of prejudice to your opponent it may not be allowed
What is the requirement of the exchange of witness lists?
Exchange of witness lists OCR 9.A.3 - within 28 days of allowance of the proof each party has to compile and intimate a list of witnesses including expert witnesses, again the sanction is the same once you get to the proof and try to call a witness you haven’t listed you need the express permission of the court which might be refused or might be subject to conditions. This is subject to the requirement because all the list requires is who your witness is going to be. It does not provide a precognition. In civil case your opponents witnesses cannot be compelled to provide a precognition to the other side.
What are pre proof consultations?
Pre-proof consultations are not mandatory but they are a matter of good practice.
Pre-proof consultation — can be conducted by using the note on the line as an agenda. It is a meeting which brings the legal team and client together to discuss prospects of success, tactics, final preparations required and prospect of settlement, whether to enable negotiations or respond to any offer on the inside.
It is good practice to have essential expert witnesses at this. Experience shows that expert witnesses will say one thing in writing but will be vulnerable to change their position under oath and under cross-examination. The written reports can also be difficult to understand and may require a meeting of the experts in order to understand. You can cross-examine them about what the have said in the report.
Finally, you can use the consultation with the expert to get ammunition from him/her as to how to cross-examine the expert on the other side.
What are the lines of evidence?
this is a doc. Which addresses the practicalities and technicalities of proving your case. It identifies the relevant facts which do not need to be proved purely because they are a matter of admission by opponent. They need to be established but you do not need a witness to them because they are admissions.
The document should also list the important points of fact which are in dispute and therefore require proof. Identify each factual position in turn which are disputed and the means by which that evidence is going to be proved, e.g. By oral evidence or by reference to other documents.
One other function of the document is that it highlights further preparation which must be carried out in advance of the proof in order to prove the facts in question.
The note on the line is a practical aide memoire which further advises on your preparation of the proof.
Notes on the line are frequently encountered where counsel is instructed because the proper approach is to ask them first and foremost to prepare a note on the line and instruct the solicitor on what preparation is needed and what are required to prove what.
It is a generally useful document for solicitor who is going to be doing the proof.
How do you get your witnesses to court on the day required?
This is done by Citation – OCR 29.7 — when sheriff allows a proof, he/she grants a warrant to cite witnesses. This effectively gives solicitors the power to compel witnesses to come along. You should never rely on witnesses turning up to a proof voluntarily, anyone with any sense will avoid the court like a plague if they have any choice. So must resort to citation. It is formal notice in a prescribed form telling the witness when and where the case is being heard and bringing them to attend.
You can serve these by recorded delivery or by instructing sheriff officers to serve it personally. If you know in advance that the witness is likely to be tricky then it is good practice to instruct sheriff officers to serve it personally.
Second diligence – OCR 29.9 — this is an obscure procedure which is a belt and braces approach in compelling their attendance. You use this when you have good reason to think that your witness will not turn up. If it is granted this warrant can be given to sheriff officer to physically compel the witness to the proof, e.g. Marching him/her along to the proof. You need good reason to think they may not otherwise attend. They are rare.
It is more common that you get to morning of the proof and a witness that you have cited do not pitch up. You have to decide whether to go on without them or adjourn the case in their absence. If a witness does not turn up without any explanation then you can ask sheriff at start of proof to grant a warrant to arrest the witness and have them turn up to lead evidence. You can lead sheriff officers to go and look for them and bring them to court. Sheriff’s are reluctant to do this, so there is judicial resistance. It is at that point that the mode of service becomes important. Personal service of the citation is therefore more persuasive.
Letters of request – OCR 28.14A — (how to deal with uncooperative witness) taking evidence of some witness before the proof because they do not live in Scotland (for example). You can compel the formal witness to give evidence in the case by this method. When you have an uncooperative witness outside the jurisdiction then you make an application to the sheriff for letters of request and explain why it is that the letters are necessary. If the sheriff is with you then he will grant letters of request and letters are addressed to an identified foreign court saying the witness is a significant witness in a foreign case and you must make arrangements to have the evidence taken in the foreign court. If letters granted they are sent by scottish court to the receiving court who should act on the request, convene a hearing and compel witness to attend and at that hearing evidence is taken and reported back to scottish court.
This is a cumbersome and expensive procedure. Since you are instructing foreign lawyers and getting them up to speed in order to ask the right questions.
The EU community has its own protocol on how these requests should be dealt with. The relevant rule is 28.14A - this means that the request to the foreign court is either to get the court to hear the evidence, as described or to permit the scottish judge to go to the foreign court and take the evidence in that court.
Evidence on commission – OCR 28.10 - (where a witness is abroad and is willing to cooperate by giving evidence but not to the extent of coming to scotland). This procedure can also be used in circumstances where the witness is not within the jurisdiction but has good reason not to attend, e.g. Ill health.
It is done before proof and their evidence is effectively maintained and made available to the sheriff at the proof.
Also if they have good reason to be outside the jurisdiction when the proof is to held (not a holiday at short notice). If you have a witness going to family wedding in australia then this is differen.t if the witness is a distinguished medic who has to go to an international conference then this will be allowed.
The procedure for evidence of commission is the same for both these scenarios. The party whose witness it is applies to the court by motion to allow the evidence to be taken from the named party on commission. There can be opposition to this e.g. The excuse is not good enough.
In some cases where the witness are particularly imp. And there is a serious issue about their credibility, the sheriff will appoint themselves as commissioner of the evidence. This is because it is preferable for the same judge to hear all the evidence in the case.
How can the evidence be taken after the commissioner is granted?
Commissions on interrogatories – OCR 29.11
Written questions prepared by the respective agents and once these list of questions are prepared the commissioner makes an appointment to see witness and takes along a clerk to record the answers, administers an oath, and simply reads questions out and records the answers.
The commissioner has a license to ask supplementary questions if he/she sees fit.
Interrogatories are the default position in the sense that if you apply for the commission, unless you ask to dispense with them then that is the way that the commission has to be executed. In practice almost invariable you dispense with these nd go for a live testimony.
Commissions without interrogatories – OCR 28.12
Again, the commission makes appt. to see the witnesses and this is then convened. At the appointed time the witness turns up the commission is there, the oath is administered, there is a short hand writer to record the questions and answers and the parties lawyers are there. They simply do what they would do at the proof with the same witness.
There is examination in chief by agent for party who called the witness, cross-examination for other side (you do not have to cross-examine - if you do you do not have to cross-examine the witness about everything he/she has said) and possible re-examination, the written record is sent back to the court and forms part of the evidence in the case. If the commissioner is not the sheriff so that the commissiner is only dealing with that witness’s evidence whereas the sheriff would be dealing with the rest. It is possible to have a report by the commissioner on the demeanour of the witness. The commissioner can of their own volition do their own report on demeanour or one or both parties can ask for it.
Can you object to questions during a commission?
during a commission just as in a proof you can object to specific questions or a line of questions. The commission can uphold or reject an objection. Upholding an objection excludes evidence from the case. The sheriff is likely to take a different view on this as to whether the questioning should have been allowed and that is likely to give rise to an appeal. The cop-out but safer approach where objection is made before commissioner is for C to listen to evidence but leave it to sheriff to decide on merits of objection. The transcript is available to sheriff to decide whether the objection is valid or not. If commissioner is reservign the position then they allow the evidence to be led and this is recorded on a paper apart which is in theory a separate document which means that when proceedings are reported to sheriff then he/she can rule and the paper apart can be disgarded. If on the other hand the objection is repelled then the sheriff can read it and see what the objection is.
