Unit 19 Civil Trials and Evidence

Question 1

What is the burden of proof in civil proceedings?

Answer 1

The claimant usually bears the legal (and evidential) burden of proving all the elements of their claim. Similarly, the defendant bears the legal (and evidential) burden of proving any defence and/or counterclaim against the claimant.
If the evidence is such that the tribunal can say; ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.

Question 2

What civil trial circumstances warrant a criminal standard or proof?

Answer 2

There are, however, some exceptional cases where a higher, criminal standard of proof is required, for example:

a. committal proceedings for civil contempt of court;
b. where statute requires the criminal standard of proof; and
c. it has been held that an exacting civil standard of proof, that is indistinguishable from the criminal standard, applies in applications for a sex offender order and in applications for a football banning order. Similarly, in proceedings to impose an anti-social behaviour order, the House of Lords held that a ‘heightened’ standard of proof should be applied.

Otherwise in civil cases, even where allegations are made of misconduct that is so serious that it could form the basis of a criminal prosecution (e.g. allegations of child abuse in care proceedings), the standard of proof remains the balance of probabilities.

Question 3

Can a party use a previous judgment as evidence of the facts in a civil case?

Answer 3

It should be noted that under the CEA 1968, s 11, to be admissible the conviction must be a subsisting one, meaning that the conviction has not been quashed on appeal or a guilty plea has not been withdrawn. Further, the conviction must have been made by a UK court.
Where a conviction is proved through use of s 11, the CEA 1968, s 11(2) establishes a rebuttable presumption that the person so convicted did commit that offence. Should a party to proceedings deny that the convicted person committed the offence, that party bears the burden of proving that, on the balance of probabilities, the convicted person is not guilty of the offence. It is not enough merely to prove that the conviction was unsafe or that there was some technical defect in the conviction, for example a wrongful admission of evidence or a misdirection to the jury, or that the prosecution was an abuse of process. This effectively reverses the legal burden of proof in respect of the commission of the offence.

Question 4

What are the practical considerations for relying on a previous conviction in a civil trial? (read)

Answer 4

Where a claimant seeks to rely on evidence under s 11, CPR Practice Direction 16, para 8.1 requires that a statement to that effect be included in his or her particulars of claim, together with details of the type of conviction, its date, the court or court-martial that made it, and the issue to which it relates. Section 11(2)(b) provides for the admissibility of certain documents for the purpose of identifying the facts on which the conviction is based, while s 11(4) allows a certified copy of the conviction, indictment, etc to be used to prove the facts on which the conviction was based.
CEA 1968, s 12 enables previous findings of adultery in matrimonial proceedings and findings of paternity to be admissible in subsequent civil proceedings for the purpose of proving those facts.
CEA 1968, s 13 creates a conclusive presumption in defamation cases that, once a person is proved to have been convicted of an offence, he or she did commit that offence. This section prevents a convicted criminal from abusing defamation proceedings to attempt to reopen a conviction.
An acquittal is not covered by any exception in the CEA 1968, so it appears that the rule in Hollington v F Hewthorn and Co Ltd still applies: the acquittal is inadmissible evidence if used to show that the criminal defendant is innocent of an offence. This may be justified by reference to the different standards of proof that apply in criminal and civil trials.

Question 5

What are the court’s powers to control evidence?

Answer 5

1. The court may control the evidence by giving directions as to—
   a) the issues on which it requires evidence;
   b) the nature of the evidence which it requires to decide those issues; and
   c) the way in which the evidence is to be placed before the court.
2. The court may use its power under this rule to exclude evidence that would otherwise be admissible.
3. The court may limit cross-examination

Question 6

What is the general rule for the evidence of witnesses?

Answer 6

The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved—

a) at trial, by their oral evidence given in public; and
b) at any other hearing, by their evidence in writing.

Question 7

What should a party do if they wish to rely on a witness statement at trial?

Answer 7

If—
a. a party has served a witness statement; and
b. he wishes to rely at trial on the evidence of the witness who made the statement,
he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.
Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief(GL) unless the court orders otherwise.
A witness giving oral evidence at trial may with the permission of the court—
a. amplify his witness statement; and
b. give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
(Permission to do so only granted if there is good reason not to confine the evidence of the witness to the contents of his witness statement.)

Question 8

What happens if a party serves a witness statement and then does not call that witness or admit it as hearsay?

Answer 8

any other party may put the witness statement in as hearsay evidence.

Question 9

What is the general rule for witness being called?

Answer 9

The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial, by their oral evidence given in public.

Question 10

If a claimant does not call their witness, but the defendant admits the statement in hearsay, does the claimant lose their right to cross-examination?

Answer 10

No, but court permission is required. Where a party (C) has served on an opponent (D) a witness statement made by another person (X), but does not call X or put in his witness statement as hearsay evidence, and D puts it in as hearsay evidence, C may then apply for the court’s permission to have X called as a witness for cross-examination on the statement provided to them. In these circumstances, C does not fall foul of the rule that prevents a party from cross-examining his own witness.

Question 11

Is evidence in proceedings other than trials written or oral?

Answer 11

1. Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.
2. At hearings other than the trial, a party may rely on the matters set out in—
   a) his statement of case; or
   b) his application notice, if the statement of case or application notice is verified by a statement of truth.

Question 12

Can cross examination be ordered of a written evidence?

Answer 12

1. Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.
2. If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.

Question 13

What is a witness summary?

Answer 13

1. A party who—
   a) is required to serve a witness statement for use at trial; but
   b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.
2. A witness summary is a summary of—
   a) the evidence, if known, which would otherwise be included in a witness statement; or
   b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.
3. Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.

Question 14

What are the consequences of failure to serve witness statements or summaries?

Answer 14

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

Question 15

Can witness statements from other proceedings be used in a current case?

Answer 15

1. Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
2. Paragraph (1) does not apply if and to the extent that—
   a) the witness gives consent in writing to some other use of it;
   b) the court gives permission for some other use; or
   c) the witness statement has been put in evidence at a hearing held in public.

Question 16

Who is to serve a witness summons?

Answer 16

1. A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.
2. Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness

Question 17

What is evidence by deposition?

Answer 17

1. A party may apply for an order for a person to be examined before the hearing takes place.
2. A person from whom evidence is to be obtained following an order under this rule is referred to as a “deponent” and the evidence is referred to as a “deposition”.
3. An order under this rule shall be for a deponent to be examined on oath before—
   a) a judge;
   b) an examiner of the court; or
   c) such other person as the court appoints.
4. The order may require the production of any document which the court considers is necessary for the purposes of the examination.
5. The order must state the date, time and place of the examination.
6. At the time of service of the order the deponent must be offered or paid—
   a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
   b) such sum by way of compensation for loss of time as may be specified in Practice Direction 34A.
7. Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.

Question 18

What is “hearsay” in a civil sense?

Answer 18

Means a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated.

Question 19

What are the rules for notice of intention to rely on hearsay evidence?

Answer 19

1.Where a party intends to rely on hearsay evidence at trial and either—
a. that evidence is to be given by a witness giving oral evidence; or
b. that evidence is contained in a witness statement of a person who is not being called to give oral evidence;
that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court’s order.
2.Where paragraph 1(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement—
a. inform the other parties that the witness is not being called to give oral evidence; and
b. give the reason why the witness will not be called.

Question 20

When is notice NOT required of intention to rely on hearsay evidence?

Answer 20

a. to evidence at hearings other than trials;
aa. to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence;
b. to a statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceedings; or
c. where the requirement is excluded by a practice direction

Question 21

What are the powers to call witnesses for cross-examination on hearsay evidence?

Answer 21

1. Where a party—
   a) proposes to rely on hearsay evidence; and
   b) does not propose to call the person who made the original statement to give oral evidence,
   the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
2. An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.

Question 22

Can an opposing party attack the credibility of a hearsay evidence witness who is not called?

Answer 22

1. Where a party—
   a) proposes to rely on hearsay evidence; but
   b) does not propose to call the person who made the original statement to give oral evidence; and
   c) another party wishes to call evidence to attack the credibility of the person who made the statement,
   the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.
2. A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.

Question 23

What considerations are relevant to the weight attributed to hearsay evidence?

Answer 23

1. In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
2. Regard may be had, in particular, to the following—
   a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
   b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
   c) whether the evidence involves multiple hearsay;
   d) whether any person involved has any motive to conceal or misrepresent matters;
   e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
   f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.