UNIT 5: EVIDENCE

Question 1

Who bears the legal burden of proof?

Answer 1

The claimant
* Each fact must be proved unless it is admitted by the opponent
o e.g., if C alleges breach of contract, they must prove:
 contract existed between the parties
 D broke the relevant express and/or implied terms of the contract
 C suffered loss as a result

Question 2

Exception to the claimant bearing the legal burden of proof?

Answer 2

• Where D in civil proceedings has been convicted of a relevant criminal offence
  o s11 Civil Evidence Act 1968 - burden of proof is reversed
  o It is for D to prove that they should not have been convicted, if this is what they wish to argue

Question 3

Who bears the burden for contributory negligence?

Answer 3

• Contributory negligence = Burden of proof will be on D
  o D will have to prove that C’s failure to take care contributed to the damage suffered

Question 4

Standard of proof for civil cases?

Answer 4

• Civil cases - C is required to prove a fact on the balance of probabilities
  o Requirement - judge must be persuaded that C’s version of events if more likely to be true than D’s (greater than 50% chance)

Question 5

General rule for evidence?

Answer 5

any fact upon which a party intends to rely must be proved at a trial by oral evidence
o In practice - much of the evidence in a civil litigation case is actually dealt with in writing

Question 6

Calling a witness?

Answer 6

o Party 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
 Cannot include inadmissible or irrelevant material
o Without serving the statement, the witness will only be allowed to speak at trial with the court’s permission (rare)

Question 7

When are witness summaries permitted?

Answer 7

o If witness statement is unobtainable - e.g., because person is not contactable abroad, or it is difficult to persuade a witness to give a statement
o Party can apply to court without notice for an order to serve a witness summary instead. This contains:
 witness’s name and address
 evidence the witness can provide, if it is known; or if not
 the matters on which the witness would be questioned at trial - i.e., the relevant disputed issues
o NB witness summaries are less satisfactory than statements, but are useful where the alternative is no evidence at all

Question 8

What should head the witness statement?

Answer 8

title of the proceedings
name of the witness,
the number of the statement,
date in the top right corner

Question 9

Opening paragraph contents?

Answer 9

title of the proceedings and details such as the name of the witness, the number of the statement, and the date in the top right corner

Question 10

Number rules for witness statement?

Answer 10

3. Paragraphs must be numbered with all numbers, including dates, being expressed as figures and not words, thus ‘five people’ should read ‘5 people’
4. Format for dates would be, e.g., 16 January 2022, and NOT 16.01.2022

Question 11

Witness statement - what should be included?

Answer 11

7. Witness must indicate which of the statements are made from their own knowledge and which are based on information and belief, naming the source if appropriate
8. Process by which the statement was prepared should be included (e.g, face to face or over telephone with a party’s solicitor)

Question 12

Must there be a statement of truth?

Answer 12

Yes
’I believe that the facts stated 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’

Question 13

Can a witness statement be signed by a legal rep?

Answer 13

no

Question 14

Special provisions where statement cannot be given in English?

Answer 14

o statement should be drafted in witness’s own language
o date and details of translation should be included

Question 15

Directions for exchange?

Answer 15

• How? - Witness statements are usually exchanged simultaneously
  o prevents one party having an advantage over the other by seeing their opponent’s witness statement first
• When? - usually exchanged a few weeks after disclosure and inspection of the documents, although the interval will vary depending on the complexity of the matter.
  o Why the interval? - allows the witness an opportunity to review their evidence after having taken into account any documents that have been inspected

Question 16

Procedure?

Answer 16

1. Pre-hearing - judge will have read all the witness statements that were exchanged
    these form part of the trial bundle
2. Witness will go into witness box, take the oath or affirm, be shown a copy of their statement and confirm the contents are true
3. It is then assumed that the witness has said, from the witness box, everything in their statement, and so this stands as their evidence- (or examination-) in chief.
4. Unless court gives permission for additional examination in chief, witness will then be subject to questioning by the other side’s advocate - i.e., cross-examination

Question 17

Can a witness add to a statement at trial?

Answer 17

• Witness cannot add to the statement at trial unless the court gives permission (rare)
  o Court will only give permission if satisfied that there is a good reason why the evidence was not dealt with in the statement itself (e.g., because it needs to be amplified or a new relevant matter arose after the statement was served)

Question 18

What is an affidavit?

Answer 18

• Definition - sworn statements of evidence, where 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
• Use - have largely been replaced by witness statements since the introduction of the CPR
  o Will be used in applications for a freezing injunction or a search order

Question 19

When is evidence relevant?

Answer 19

• When it addresses relevant facts, i.e., those which are in dispute and which have to be proved by the party calling the witness
• Easy tell - when comparing the PoC and the defence, the facts not admitted and denied are the ones in dispute

Question 20

General rule for opinion?

Answer 20

• General rule - opinion evidence is not admissible because the function of a witness is to give evidence of relevant facts from which the court can draw its own conclusions

Question 21

Exceptions to opinion rule?

Answer 21

Facts personally perceived:
* s3(2) Civil Evidence Act - a witness may give a statement of opinion if made as a way of conveying relevant facts personally perceived by them.
* Requirements:
o Rather than stating opinion, witness should list the facts they saw which led them to reach their conclusion
o If ^ fails, even though the accuracy of the witness’s assessment of e.g., the speed or level of intoxication might be challenged, the evidence would usually be admissible
* What can witnesses not do?
o Draw any conclusion from their evidence - this is the role of the court
o Example - witness to a road traffic collision cannot say in evidence that (in their opinion) D’s speed was ‘excessive in the circumstances’ or ‘too fast’ because it is for the trial judge to determine if D was driving negligently

Expert evidence:
* cf witnesses of fact
* Experts are permitted to express their opinions in court

Question 22

Hearsay requirements?

Answer 22

o a statement made outside court;
o which is repeated in court;
o to prove the truth of the matter stated
* Requirements -
o the statement must be:
 a relevant fact; or
 an admissible opinion
o It may be:
 oral or written; and
 repeated in court in a document, or by the witness whether in their witness statement or in oral evidence
o The crucial aspect is the purpose:
 The statement must be to prove the truth of the words said
 i.e., the trial judge is being asked to rely on the repetition of the words to reach a decision in the case

Question 23

Notice requirements for hearsay?

Answer 23

o If the party intends to call the witness whose statement contains hearsay evidence, they simply need to serve the other party with the statement. D also serves notice that they will attack credibility if desired.

Question 24

After being served notice for hearsay evidence, what must the opponent/defendant do?

Answer 24

o The opponent must then decide whether to ask the court to order that the maker of the original statement attends for cross-examination or serve notice of intention to attack the credibility of the hearsay evidence.
o If the 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. This obviously limits the opponent’s options as they cannot cross-examine the witness and so they must be given advance warning of the situation.

Question 25

What happens if the party does not propose to call the witness to give oral evidence?

Answer 25

o If the 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. This obviously limits the opponent’s options as they cannot cross-examine the witness and so they must be given advance warning of the situation

Question 26

What is a hearsay notice?

Answer 26

• When serving the witness statement, the party intending to rely on the hearsay evidence must inform the other parties that the witness is not being called to give oral evidence, and explain the reason why.
  o Done via a hearsay notice - should be served alongside the witness statement

Question 27

What if a party fails to comply with notice requirements?

Answer 27

• If party fails to comply with notice requirements, hearsay is still admissible but the failure may be taken into account:
  o when assessing the weight to be given to it; or
  o when making a costs order at the end of the trial

Question 28

Weight to be attached to hearsay evidence?

Answer 28

• Hearsay evidence is admissible, but it is ‘second best’ evidence of a fact
  o Why?
   out of court statements are not made on oath or with any form of affirmation
   it is not uncommon for a person to lie or make inaccurate statements
   additionally, the more times a statement is repeated, the more likely there is to be an error
   the maker of the hearsay statement is not at trial, so they cannot be cross-examined - there is no way for the trial judge to assess the reliability of the evidence by observing the witness’s demeanour, and their powers of observation cannot be challenged

Question 29

• Court’s approach to hearsay - three questions?

Answer 29

o What issue, if any, does the hearsay evidence address?
o How important is that issue in the case?
o What other evidence is available on the same issue?
o Is the hearsay evidence more probative than any other evidence the party could obtain through reasonable efforts?

Question 30

• Statutory safeguards (s4 Civil Evidence Act) in assessing the weight that should be attached to hearsay evidence?

Answer 30

1. Only if the reason is a credible one, such as the person being dead or abroad and not contactable, is the statement likely be given some weight; otherwise, why not call the person to give oral evidence?
2. Whether the original statement was made contemporaneously with the events in question, so that the facts referred to in it are fresh in the memory of the person making it.
3. A note made of a car registration number immediately after the car drives off will generally be more reliable than one made the next day, week or month.
4. Whether the evidence involves multiple hearsay as there is always the danger of mishearing, exaggeration and general inaccuracy through repetition.
5. Whether any person involved had any motive to conceal or misrepresent matters.
6. for example an employee who makes the statement with a view to pleasing their employer.
7. Whether the original statement was edited, or was made in collaboration with someone else, as this may suggest collusion, for instance.
8. 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 31

How does the court regulate the use of expert evidence?

Answer 31

• Parties do not have an unlimited right to use expert evidence, and the court will restrict it to that which is reasonably required to resolve the issues. This may include:
  o refusing to allow any expert evidence at all;
  o limiting the number of experts either generally or in relation to specific issues;
  o directing that the parties must agree experts; or
  o limiting expert evidence to written reports.

Question 32

Can a solicitor be an expert witness for a negligence case?

Answer 32

we never have a solicitor as an expert in any negligence case (because that’s what the judge is there for)
o Exception - if there is a really niche area of law and the judge would not have experience in it

Question 33

Do parties need permission to call expert witnesses?

Answer 33

YES
Court will need to be satisfied that expert evidence is necessary to decide an issue in dispute, or to assist the judge in doing so.
o Factors taken into account include:
 value of claim
 proportionality
 likely costs

Question 34

• Additional info required by judge regarding the expert witness?

Answer 34

o the name of the expert where practicable
o the field the person is an expert in
o their knowledge and experience to ensure they are suitable to give their evidence; and
o the issues the expert will address

Question 35

Admissibility of expert evidence?

Answer 35

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 evidence shall be admissible in evidence’

Question 36

Expert’s duty?

Answer 36

• The duty is to assist the court by providing objective, unbiased opinions on matters within their own expertise. Although in many cases an expert is instructed by one particular party, the duty to the court overrides any obligation to the person who instructed them
• The duty is not to assume the role of an advocate.
  
  • Nb expert will be subject to the usual implied term to exercise reasonable care and skill under s13 Supply of Goods and Services Act when considering and drafting their report

Question 37

When is a single joint expert desirable?

Answer 37

o Court will decide by considering factors including whether:
 it is proportionate to have separate experts for each party on a particular issue;
 the instruction of an SJE is likely to assist in resolving the issue more speedily and in a more cost-effective way; and
 there is likely to be a range of expert opinion

Question 38

• Who chooses the expert?

Answer 38

o If agreement cannot be reached on who this will be, the court will select the expert from a list prepared by the parties
* On the fast track, the usual order is for an SJE to be appointed unless there is a good reason not to do so, rather than allowing each party to instruct their own
* Where expert is jointly instructed, they will send their report simultaneously to both parties with the costs being shared
* Normally, on the fast-track, expert evidence will be given through written reports

Question 39

Separate instruction of experts?

Answer 39

• Multi-track cases - more common for parties to instruct their own experts
• Factors considered:
  o amount in dispute
  o importance to the parties
  o complexity of the issue

Question 40

Separate experts - first two steps of procedure?

Answer 40

o Exchange - deadline will be imposed for exchange of the experts’ reports
o Questions - each party may, within 28 days, put written questions to the expert for clarification of their report. Expert’s answers are treated as part of the report.

Question 41

What is a without prejudice discussion?

Answer 41

• court may order a without prejudice discussion between the experts, usually in absence of parties/their legal representatives. Contents will not be referred to at trial unless parties agree. Purpose is to narrow down issues and to identify:
   extent of any agreement between them;
   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

Question 42

What is a written joint statement ?

Answer 42

after discussion, written joint statement must be prepared for the court and signed by experts. Should state issued which are agreed and disagreed, with a summary of the reasons. Copies should be provided to the parties.

Question 43

o Oral evidence given by expert?

Answer 43

judge will decide whether the expert may give oral evidence at trial. Though there is a presumption that the court will rely upon written reports, it is common on the multi-track for experts to be called to give evidence.

Question 44

Expert report requirements?

Answer 44

o be addressed to the court;
o give details of the expert’s qualifications;
o give details of any literature or other material that the expert has relied on;
o contain a statement setting out the substance of all facts and instructions;
o say who carried out any examinations, measurements, tests or experiments, their qualifications, and whether the expert supervised;
o where there is a range of opinion, summarise this and give reasons for the expert’s own opinion;
o include a summary of the conclusions reached; and
o contain a statement that the expert understands their duty to the court and has complied with this, and is aware of the requirements of Part 35 and related guidance.

Question 45

Statement of truth in expert report?

Answer 45

• Must also be verified by a statement of truth:
  o “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 46

Effect of the expert failing to comply with Part 35?

Answer 46

• If breach is serious, party may not be allowed to rely on that expert’s evidence
• Usually, judge will just take account of the breach when deciding what weight should be given to the expert evidence

Question 47

Professional conduct issues when drafting the expert report?

Answer 47

• When drafting the report, the expert must set out all the instructions, whether written or oral, which are material to the opinions expressed or upon which their opinions are based
  o Rationale - ensures that the report is not influenced in any way
  o Example - a surveyor who is instructed to value a property on the basis of a quick sale may arrive at a different figure than if asked to provide an optimal valuation

Question 48

What should legal reps consider regarding the expert report?

Answer 48

• Legal representatives should be aware that their instructions are not privileged from inspection
  o Could be scrutinised by the court should the court find reasonable grounds to consider the statement of instructions to be inaccurate or incomplete