Unit 5 Evidence Flashcards
Burden and standard of proof
The legal burden of proof lies with the claimant and each fact must be proved unless it is admitted by the opponent.
Exceptions:
- Where the defendant in civil proceedings has been convicted of a relevant criminal offence the burden of proof is reversed - if D wishes to argue they should not have been convicted they must prove this.
- CN - D must prove that the claimant’s failure to take care contributed to the damage suffered.
Balance of probabilities.
Witness statements
If a party wishes to call a witness, they must serve a witness statement on the other parties setting out all the facts which that witness would be allowed to give orally at trial. Inadmissible or irrelevant material should not be included.
If the statement is not served for any reason, the witness will only be allowed to speak at trial with the court’s permission and this would be rare.
Witness will usually be called to give oral evidence at trial if judge believes good reason why the evidence was not dealt with in the statement itself.
Witness summaries
Sometimes it will be difficult to obtain a witness statement (e.g. abroad, it will be against their current employer and they fear being dismissed).
In these circumstances, the party can apply to the court without notice for an order to serve a written witness summary.
This will contain:
* the witness’s name and 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.
Affidavits
= sworn statements of evidence and they differ from witness statements as the maker has to swear or affirm before a solicitor (not their own), or other authorised person, that the contents of the affidavit are true.
There are now only a few occasions where it is necessary to use an affidavit, including applications for a freezing injunction or a search order.
Witness evidence
Irrelevant material is not admissible.
General rule is that opinion evidence is not admissible.
Exceptions:
If made as a way of conveying relevant facts personally perceived by them.
List the facts that they saw which led them to reach their conclusion but not draw a conclusion.
Hearsay evidence
=
* a statement made outside court;
* which is repeated in court;
* to prove the truth of the matter stated.
Admissible if:
* it is relevant
* there is no reason for making it inadmissible (e.g. opinion not based on facts personally perceived)
s2 notice requirements:
If party intend to call witness, serve other party with witness statement.
If just relying on statement need to give advance warning.
Opponent ask court to order maker of original statement come in for cross examination or serve notice of intention to attack credibility of the hearsay evidence.
Opponent may attack the weight to be attached to evidence using s4 guidelines.
E.g. multiple hearsay, original statement made contemporaneously with events, motive to conceal or misrepresent etc.
Expert evidence
Court will restrict such evidence to that which is reasonably required to resolve the issues.
Parties must obtain permission to call an expert.
Experts duty to provide objective, unbiased opinions within their own expertise.
Duty not to assume role of advocate.
Do have duty to party who instructed them - usual implied term to exercise reasonable care and skill.
Expert evidence - Single joint expert
Court may direct that the evidence is given by one expert only.
If agreement cannot be reached on who this will be, the court will select the expert from a list prepared by the parties.
On fast track SJE unless good reason not to.
Procedure:
Expert sends written report simultaneously to both parties.
Costs are shared.
At trial - expert evidence by written report only.
Expert evidence - Seperate experts
On multi track normally separate experts.
Procedure:
- Exchange of experts reports simultaneously.
- Experts to answer written questions from parties (provided within 28 days of report) with the answers being treated as part of report.
- Without prejudice discussion to identify issues agreed, those in dispute and possible future acton.
- Written joint statement summarising issues on which they agree and disagree.
- At trial - oral evidence likely.
