Proving a Case

Question 1

What is the general rule for burden of proof in civil practice?

Answer 1

‘Who asserts, proves’

Question 2

What are the three principles of evidence in civil law?

Answer 2

1. Is evidence relevant?
2. Is it admissible?
3. What is the weight to be given to this evidence?

Question 3

What is the standard of proof in civil law?

Answer 3

Balance of probabilities.

Question 4

Miller v Minister of Pensions [1947] 1 All ER 372

Answer 4

Standard of proof: More probable than not

Question 5

Re B (Children) (care proceedings Standard of Proof) [2008] 1 AC 11

Answer 5

no room for the nostrum: the more serious the allegation, the more cogent the evidence needed to prove it

Question 6

All the following cases employ the same principle, what is it?

Hornal v Neuberger Products Ltd [1957] 1QB 247
R (D) v Life Sentence Review Commissioners (Northern Ireland) [2008] UKHL 33 and Maple Leaf Macro Volatility Master Fund v Rouvroy [2009] EWCH 257 (Comm) at [327]

Answer 6

More cogent evidence might be needed to overcome the unlikelihood of what is alleged, despite the standard remaining at balance of probs. See Re B for opposite.

Question 7

Can the court choose which evidence is brought?

Answer 7

Yes

CPR 1.4 Court’s duty to manage cases

Including the identification of issues, and directing if, when and how they may be dealt with.

CPR 32.1 Court’s power to control evidence

Question 8

CPR 32.1

Answer 8

Court’s power to control evidence

Court may give directions “identifying or limiting the issues to which factual evidence may be directed” (r.32.2(3))

Question 9

What is the rule of finality?

Answer 9

As a general rule the answers given by a witness under cross-examination on collateral questions are final. That is not to say that the court must accept the answer but that the other party should not call further evidence in rebuttal.

Question 10

What is the point of the rule of finality?

Answer 10

This rule is intended to prevent a trial within a trial.

Question 11

What are the exceptions to the rule of finality?

Answer 11

:(1) where a witness has been convicted of a crime;
(2) previous inconsistent statements;
(3) evidence to show the witness is biased in favour of the party calling him and
(4) evidence of physical or mental disability affecting reliability
Toohey v Metropolitan Police Comr [1965] AC 595

Question 12

What is real evidence?

Answer 12

Real evidence includes: material objects; the appearance of people/animals; demeanour of witnesses; views and documents.

Question 13

What is the rule for judgments as evidence?

Answer 13

Civil Evidence Act 1968 s. 11: Previous convictions

This section creates a presumption that a person convicted of an offence shall be taken to have committed the offence unless the contrary is proved. The conviction must be set out in the Particulars of Claim; 16PD8.1 (1).

Question 14

What does primary or secondary evidence refer to?

Answer 14

This simply refers to originals and copies.

Question 15

CPR 32

Answer 15

Rules on witness statements

Question 16

CPR 32.10

Answer 16

If you fail to serve a witness statement you will not be able to call that witness without the court’s permission.

Question 17

CPR 32.5(2)

Answer 17

Witnesses do not usually give examination in chief. Witness statement serves as this.

Question 18

When does a witness not need to be sworn/affirmed?

Answer 18

1) Children (see above).
2) Small Claims track (CPR 27.8(4))
3) Arbitration proceedings (where the strict rules of evidence do not apply)

Question 19

What is the general rule on expert witnesses in civil?

Answer 19

The general rule is that evidence of opinion is not permitted

Question 20

Are there any exceptions to the general rule of expert evidence in civil?

Answer 20

s.3 of the Civil Evidence Act 1972

(1) Subject to any rules of court made in pursuance of Part I of the M1Civil Evidence Act 1968 or this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2)It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3)In this section “relevant matter” includes an issue in the proceedings in question.

Question 21

CPR 35.1, 35.4

Answer 21

Duty and powers to restrict expert evidence.

Question 22

What is the starting point for expert witnesses? CPR 35.7

Answer 22

Single joint expert

Question 23

CPR 35.3 Expert’s duty

Answer 23

Duty always to the court

Question 24

CPR 35.12 Two experts

Answer 24

When both parties call an expert it is appropriate that the experts meet before trial.