Unit 5

Question 1

What is the general rule as to the legal burden of proof in cvil cases?

Answer 1

legal burden of proof lies with the claimant and each fact must be proven unless it is admitted by the opponent.

Question 2

What is the exception to the legal burden of proof being with the claimant?

Answer 2

• S 11 Civil Evidence Act 1968 – Where D in civil proceedings has been convicted of the relevant criminal offence. There is then a presumption of guilt.

– S 11 reverses the legal burden. It is for the defendant to prove that they should not have been convicted of said crime / tort in the criminal courts.

– The standard of proof in this case is on the balance of probabilities.

Question 3

What other cases does the legal burden of proof fall on the defendant?

Answer 3

– Contributory negligence – where D must prove that the claimant’s failure to take care contributed to the damage suffered.

Question 4

What is the standard of proof in civil cases?

Answer 4

Civil cases = claimant is required to prove a fact on the balance of probabilities.

– This requires the judge to be persuaded that the claimant’s version of events is more likely to be true than the defendant’s.

– Must be certainty of greater than 50%.

Question 5

What are the rules on calling a witness (Part 32)?

Answer 5

if a party wants to call a witness, they must serve a witness statement on the other parties, setting out all the facts that the witness would be allowed to give orally at trial.

– Failure to serve statement means the witness will only be allowed to speak at trial with the court’s permission.

Question 6

When are witness summaries used?

Answer 6

Where a witness is not complying / it is difficult to obtain a witness statement from the witness, the party can apply to the court without notice for an order to serve a witness summary. This contains:

• The witness’s name & address;
• The evidence the witness can provide, if it is known; or if not
• The matters on which the witness would be questioned at trial, namely, the relevant disputed issues.

Note – Witness summary are less satisfactory to the party but may be useful where the alternative is no evidence.

Question 7

Is the application to use a witness summary to the court with or without notice?

Answer 7

WITHOUT notice.

Question 8

Part 32 Formalities for witness statements …

Answer 8

Formalities for witness statement:

• Heading – statement should be headed with the title of the proceedings and details like the name of the witness, number of the statement and the date in the top right hand corner.
• Opening paragraph – Witness’s address, their occupation or description, whether the statement is made as part of the their employment or business and, if so, the name of the business and whether they are party to the proceedings.
• Process – Must state how it was made (i.e., over the phone).
• Paragraphs – must be numbered with all numbers, including dates, being expressed as figures and not words (i.e., ‘five people’ should be ‘5 people’).

– The format for dates would be 16 January 2022 and not 16.01.2022).

• Chronology – statement should follow the chronological sequence of events.
• Function – is to set out in writing the evidence that the individual wants to provide on behalf of the party that called them.
• Written – form should be written in the first person and expressed in the witness’s own words as far as possible.
• Categorisation of knowledge – witness should indicate which of the statements are made from their own knowledge and which are based on information and belief, name any sources etc.

– Process of how the witness prepared their statement should be included (e.g., face to face with a solicitor / over telephone).

• Exhibition of documents – should be formally exhibited (e.g., AP1).
• Statement of truth – in the format:

“I believed that the facts in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”.

– Statement of truth cannot be signed by a legal representative.

Question 9

What is the format for the w statement of truth for the witness statement?

Answer 9

“I believed that the facts in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”.

CANNOT be signed by a legal representative.

Question 10

Can the witness alter their statement at trial?

Answer 10

No. Not without the court’s permission. Court wil give permission where there is good reason to.

Question 11

What are the rules of witness evidence?

Answer 11

Evidence needs to be:

1) RELEVANT
– Irrelevant material is not admissible.
– Disputed facts are relevant.

2) OPINION
– Opinion evidence is not admissible because the function of a witness is to give evidence of relevant facts which the court can draw its own conclusions.

Question 12

What are the exceptions to the rules of witness evidence (relevant & no opinion evidence)?

Answer 12

1) Facts personally perceived

– a witness may give a statement of opinion if made as a way of conveying the relevant facts personally perceived by them.

– I.e., listing the facts.

– Witness not allowed to draw conclusion from their evidence as this is the role of the court.

e., in a road traffic collision, witness cannot say the defendant’s speed was excessive in the circumstances or too fast as it is for the trial judge to determine if D was driving negligently.

2) Expert evidence

– Experts are allowed to express their opinions in court.

Question 13

What is the definition of hearsay evidence?

Answer 13

Definition:

• A statement made outside court;
• Which is repeated in court;
• To prove the truth of the matter stated.

Question 14

Example of hearsay evidence.

Answer 14

Example of hearsay evidence = Where person A sees someone climbing into the window of a house. A later tells person B that the person he saw was C. Evidence from B of what A told him will be hearsay.

Question 15

What are the Part 33 requirements of using hearsay evidence in a witness statement?

Answer 15

Notice requirements (Part 33)

– If a party intends to call a witness whose statement contains hearsay evidence, they need to serve the other party with the statement;

– Opponent must then decide whether to:

1. Ask the court to order that the maker of the original statement attends for cross-examination or;
2. Serve notice of intention to attack the credibility of the hearsay evidence.

• Hearsay Notice – Where party does not propose to call the witness to give oral evidence, but instead intends to rely upon the witness statement itself, the whole statement becomes hearsay, and a hearsay notice is required.

– If a witness is not going to be called to give evidence and their statement contains hearsay, then they must serve a hearsay notice.

– Opponent must be given notice of this – they will not be able to cross-examine the witness.

– Hearsay notice – must explain reason why not calling the witness and should be served at the same time as the witness statement.

Question 16

If the notice requirements are not complied with what is the effect?

Answer 16

Hearsay still admissible, but failure to notify will be taken into account when assessing the weight to be given to it

Question 17

How does the court consider the reliability of hearsay statements?

Answer 17

Court considers reliability of hearsay statement by the following questions:

1. What issue does the hearsay evidence address?
2. How important is that issue in the case?
3. What other evidence is available on the same issue?
4. Is the hearsay evidence more probative that any other evidence the party could obtain through reasonable efforts?

Question 18

What are the statutory safeguards / guidelines in assessing the weight which should be attached to hearsay evidence? (S 4 Civil Evidence Act)

Answer 18

“Judge should have regard to all the circumstances and to the following”:

(a) Whether it would have been reasonable and practicable for the party adducing the evidence to have called the person who made the original statement as a witness.

(b) Whether the original statement was made contemporaneously with the events, i.e., are the facts referred to fresh in the memory of the person making it?

(c) Whether the evidence involved multiple hearsay as there is always the danger of mishearing, exaggeration and general inaccuracy through repetition.

(d) Whether any person involved had any motive to conceal or misrepresent matters, e.g., an employee who makes the statement with a view to pleasing their employer.

(e) Whether the original statement was edited, or was made in collaboration with someone else, as this may suggest collusion.

(f) Whether the circumstances suggest an attempt to prevent proper evaluation of the weight of the evidence, perhaps because notice was given so late that the other party did not have a fair opportunity to respond to it.

Question 19

Can any party call an expert without getting court permission?

Answer 19

No.

Question 20

What will the judge require information on when determining whether evidence is “necessary”?

Answer 20

Judge will require information on:

• NAME – The name of the expert where practicable;
• FIELD – The field the person is an expert in;
• KNOWLEDGE – Their knowledge and experience to ensure they are suitable to give their evidence; and
• ISSUES – The issues the expert will address.

Question 21

Summary of the expert’s duty (Part 35)

Answer 21

• Duty = to assist the court by providing objective, unbiased opinions on matters within their own expertise.

– Where an expert is instructed by one particular party, the duty to the court overrides any obligation to the person who instructed them.

– Expert still has some duty to the one who instructed them – subject to the usual implied term to exercise reasonable care and skill under s 13 Supply of Goods and Services Act 1982 when considering and drafting their report.

Question 22

Does the expert’s duty to the court override their duty to the person who instructed them?

Answer 22

Yes.

Question 23

Should the expert assume the role of the advocate?

Answer 23

NO.

Question 24

Where separate experts are appointed what is the procedure?

Answer 24

Court will narrow down the issues the experts need to consider/comment upon. These include:

1) Exchange: a deadline will be imposed for exchange of the experts’ reports.

2) Questions: Each party may, within 28 days of service of the report, put written questions to the expert for clarification of their report. The expert’s answers are treated as part of the report.

3) If written questions are put to an expert who does not answer, the court may order that the party instructing that expert cannot rely on the evidence of that report and can also order that the fees of that expert are not recoverable.

4) Discussion: Court may order a without prejudice discussion between the experts, usually in the absence of the parties and legal representatives, and the contents will not be referred to at trial unless the parties agree.

5) Purpose of the discussion is not to settle the case but to narrow down the issues and to identify:

• Extent of any agreement between them;
• The points of and short reasons for any disagreement;
• What action, if any, may be taken to resolve these; and
• Any further material issues not yet raised and the extent to which these are agreed.

6) Written joint statement: following the discussion, a written joint statement must be prepared for the court and signed by the experts stating the issues on which they agree and those on which they disagree with a summary of the reasons. Copies should be provided to parties.

7) Oral evidence: judge will decide whether the expert may give oral evidence at trial. There is a presumption that the court will rely on written reports, however, it is common on the multi-track for experts to be called to give evidence.

Question 25

Can the court order a without prejudice discussion between two expert witnesses in the absence of parties / legal representatives?

Answer 25

Discussion: Court may order a without prejudice discussion between the experts, usually in the absence of the parties and legal representatives, and the contents will not be referred to at trial unless the parties agree.

Purpose of the discussion is not to settle the case but to narrow down the issues and to identify:

• Extent of any agreement between them;
• The points of and short reasons for any disagreement;
• What action, if any, may be taken to resolve these; and
• Any further material issues not yet raised and the extent to which these are agreed.

Without prejudice = jusge wont see it.

Question 26

What are the Part 35 formalities for expert evidence?

Answer 26

Formalities must be complied with. The expert’s report must:

(a) Be addressed to the COURT

(b) Give details of the expert’s qualifications

(c) Give details of any literature or other material that the expert has relied on;

(d) Contain a statement setting out the substance of all facts and instructions;

(e) Say who carried out any examinations, measurements, tests or experiments, their qualifications and whether the expert supervised.

(f) Where there is a range of opinion, summarise this and give reasons for the expert’s own opinion;

(g) Include a summary of the conclusions reached and

(h) Contain a statement that the expert understands their duty to the court and has complied with this and is aware of requirements of Part 35.

(i) Verified by a statement of truth which must read as follows:

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer”

Question 27

What document is not included in the trial bundle?

Answer 27

List of standard disclosure documents.