Proving a Case Flashcards
What is the general rule for burden of proof in civil practice?
‘Who asserts, proves’
What are the three principles of evidence in civil law?
- Is evidence relevant?
- Is it admissible?
- What is the weight to be given to this evidence?
What is the standard of proof in civil law?
Balance of probabilities.
Miller v Minister of Pensions [1947] 1 All ER 372
Standard of proof: More probable than not
Re B (Children) (care proceedings Standard of Proof) [2008] 1 AC 11
no room for the nostrum: the more serious the allegation, the more cogent the evidence needed to prove it
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]
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.
Can the court choose which evidence is brought?
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
CPR 32.1
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))
What is the rule of finality?
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.
What is the point of the rule of finality?
This rule is intended to prevent a trial within a trial.
What are the exceptions to the rule of finality?
:(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
What is real evidence?
Real evidence includes: material objects; the appearance of people/animals; demeanour of witnesses; views and documents.
What is the rule for judgments as evidence?
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).
What does primary or secondary evidence refer to?
This simply refers to originals and copies.
CPR 32
Rules on witness statements
CPR 32.10
If you fail to serve a witness statement you will not be able to call that witness without the court’s permission.
CPR 32.5(2)
Witnesses do not usually give examination in chief. Witness statement serves as this.
When does a witness not need to be sworn/affirmed?
1) Children (see above).
2) Small Claims track (CPR 27.8(4))
3) Arbitration proceedings (where the strict rules of evidence do not apply)
What is the general rule on expert witnesses in civil?
The general rule is that evidence of opinion is not permitted
Are there any exceptions to the general rule of expert evidence in civil?
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.
CPR 35.1, 35.4
Duty and powers to restrict expert evidence.
What is the starting point for expert witnesses? CPR 35.7
Single joint expert
CPR 35.3 Expert’s duty
Duty always to the court
CPR 35.12 Two experts
When both parties call an expert it is appropriate that the experts meet before trial.
