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DR > Unit 10 & 11 > Flashcards

Unit 10 & 11 Flashcards

1
Q

When analysing the other party’s list of documents and you found that there’s missing documents and mistakes, what should you do to amend this?

A
  1. Write to the opposing party highlighting the mistakes and the missing documents. Preserve that if they do not wish to make any amendments, an application to the court will happen.
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2
Q

If the opposing party does not respond to your writing on the highlights of issues with their list of documents, what’s the next step you can do?

A
  1. If they did not provide a satisfactory response, make an application to the court of 31.1.2 - specific disclosure to address searching other locations for documents and the missing documents.
  2. For documents that are listed in part 2 that were supposedly protected by the LA privilege or litigation privilege, party can apply for a challenge of this privilege under 31.1.9 sub para 5.

But seek client’s commercial objectives before making an application.

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3
Q

What’s the rule that relates to the expert evidence?

A

CPR 35 and PD35.

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4
Q

What is the meaning of an expert?

A

CPR 35.2 - expert is someone who has been instructed to give evidence on their expertise.

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5
Q

Are expert evidence admissible?

A

Yes if they are relevant and within the expertise of the expert.
35.1 - expert evidence is restricted to what is needed to resolve the issues in the proceedings.

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6
Q

What is the duty of an expert?

A

Duty of reasonable care and skill - Para 9 guidance and they can be sued for negligence if they failed to do this.
Their duty is to the court - they would be unbiased and objective.

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7
Q

Can an employee of a party be considered as an expert and provide expert evidence?

A

Yes if they are aware of their duty as an expert and the court would need to be satisfied that they are aware of this. - Field v Leeds.

But this is hard to prove so it is better to have an independent 3rd party to be an expert - Proton v Orlen.

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8
Q

Are instructions privileged?

A

NO under 35.10(4). This means they are disclosed to the other party.

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9
Q

Can cross-examination occur for the expert evidence?

A

Yes under para 3, PD 35 - if the expert evidence affects the interests of justice.

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10
Q

Are expert evidence privileged?

A

Yes, they are litigation privileged especially if they are the 1st expert report prepared for the main purpose of litigation.

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11
Q

What is the format for an expert report?

A

35.5(1) - Report should be in writing unless the court instructs otherwise.

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12
Q

What is the rule that states the content for the expert report?

A

PD35, para 3.1 - Expert report should be addressed to the court.
Para 3.2 - Outlines the content of the expert report
Para 3.3 - Statement of truth

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13
Q

What should the expert report contain? (there’s 9)

A
  1. expert’s qualifications.
  2. Literature and the material that the expert has relied on to compose their expert report.
  3. Statements of setting out the facts and the instructions related to the expert report.
  4. Should state clear facts that are based on the expert’s knowledge.
  5. Details of who had carried out the examination
  6. Range of opinions
    a. Summarised
    b. Reasons should be outlined
  7. Summary of the conclusions of the expert
  8. If the expert is unable to provide an opinion without the qualification, state the qualification.
  9. Statement that the expert understands:
    a. Their duty to the court.
    b. The CPR 35, PD35 and the Guidance for the instruction of Experts in Civil Claims 2014 requirements.
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14
Q

What questions can you ask the opposing party’s expert?

A

35.6 - it should be written questions

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15
Q

What’s the requirement for asking questions to the opposing party’s expert?

A
  1. 6(2)
    a. Should be sent once
    b. Should be sent within 28 days within the service of the report.
    c. clarify the report.
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16
Q

What evidence is admissible for witness evidence?

A

Only relevant evidence - Obrian v CC South Wales

17
Q

What is hearsay evidence?

A

s1(2)(a) of civil evidence act 1995:
statement
made by someone else who isn’t the person giving evidence in the proceedings
It is offered as evidence

18
Q

What is the definition of hearsay?

A

Statement made outside of court, repeated to the court to prove the matter was stated out of the court.

19
Q

Are hearsay evidence excluded?

A

No, not in civil proceedings

20
Q

Are hearsay evidence admissible?

A

Yes if they were given toby a first hand witness and relevant to the issues in disputes - Obrian v CC South Wales

21
Q

What’s the rule for the notice to inform the other party that you will be relying on hearsay evidence?

A

CPR 33.2

22
Q

Do you have to inform the other side that you will be relying on hearsay evidence?

A

Yes, if you are relying on a WS with a hearsay evidence Provide them a hearsay notice if the witness will not be called to the hearing to give oral evidence under R33.2.

23
Q

If the witness is not testifying at the hearing, what’s the rule and what should you do?

A

Under s2 of the civil evidence act 1995, give them a notice stating why the witness will not be called.

24
Q

What’s the weight on the hearsay evidence?

A

S4 of Civil Evidence Act 1995 - limited weight because the hearsay evidence will not be made under oath, there’s a risk of Chinese whispers and person who made the hearsay statement cannot be cross examined.

25
Q

What’s the PD for the formatting of a WS?

A

32

26
Q

What’s the PD32, paras for the formatting of the heading and Layout of the WS

A
  1. 1 - Title of Proceedings
  2. 2 - State the party that the WS is made on behalf for, the full initials and surname of the party, the number of the WS and the Initial and number of exhibit and the date.
27
Q

What’s the PD32, para for the Content of the WS?

A
  1. 1 - Should be in personal pronoun “I”, state the full name, the place of residence or work, occupation.
  2. 2 - Witness should state that they are aware of the knowledge of the creation of the WS.
28
Q

What’s the PD32, para for the Exhibits of the WS ?

A
  1. 3 - should be verified and identified
  2. 4 - should be referred to
  3. 5 - they are similar to an affidavit in terms of application
  4. 6 - if more than one WS by the witness, the exhibit should be made consecutively (number continues).
29
Q

What’s the PD32, para for the Formalities for the WS?

A

19.1
Paras should be numbered
Numbers should be in figures
Events should be in chronological order (19.2)
Reference to any documents should be made

30
Q

What’s the PD, para for the WS’ statement of truth

A

CPR 20.1 and 20.2

31
Q

If the witness fails to verify the statement with the statement of truth, what happens to the WS?

A

WS will not be admissible.

32
Q

If a witness failed to serve their WS by the deadline, what happens?

A

3.10 - Witness may not be able to be called unless the court had given permission to do so.

DR (6 decks)

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