UNIT 5 - Evidence Flashcards
A lawyer issues proceedings on behalf of their client (a man) against a company for breach of contract. The lawyer drafts the client’s witness statement and writes to him enclosing it. The client asks for information about the process – specifically what formalities are required and what may be included in the content.
Which of the following should be omitted from the letter of advice to the client?
A) The witness statement must comply with the formalities required by the CPR and should include a statement of truth.
B) The statement should, so far as possible, be expressed in the man’s own words.
C) The man can only include evidence that he would be allowed to give orally so irrelevant and inadmissible evidence must be excluded.
D) The man may use his witness statement to argue his case and to make observations about the evidence of other witnesses.
E) The man must indicate which statements are made from his own knowledge and provide the source of any information which is not.
CORRECT ANSWER D - he man should only give factual evidence and it is not the function of the witness statement to argue his case or to make observations about the evidence of other witnesses. Option A correctly identifies that the witness statement must comply with CPR Part 32. Option B correctly provides that the statement will stand as the man’s evidence-in-chief; and option C correctly states that the witness statement is subject to the usual rules of evidence. Option E is another requirement of the CPR.
A woman purchases a car from a local garage after the salesman assures her that the vehicle has never been involved in an accident (statement 1). When she drives the car, it bursts into flames and, on inspection by an expert, it becomes apparent that the vehicle had been completely rebuilt after a collision two years previously. The woman sues the company that sold her the car and includes in her witness statement evidence of the comment that was made to her by the salesman (statement 1) and also what her friend told her afterwards, namely that the company was ‘dodgy’ (untrustworthy) – statement 2.
Which of the following correctly describes the evidence the woman may give in her witness statement?
A) Both statements are admissible hearsay.
B) Statement 1 is not hearsay but is admissible as it is relevant to an issue in dispute. Statement 2 is hearsay but it is inadmissible because it is opinion evidence.
C) Both statements are inadmissible opinion evidence.
D) Statement 1 is not hearsay but is admissible as it is relevant to an issue in dispute. Statement 2 is admissible hearsay.
E) Statement 1 is admissible hearsay and statement 2 is inadmissible opinion evidence.
CORRECT ANSWER B - Statement 1 is admissible evidence: it is relevant to the issue of misrepresentation as the woman is alleging that the statement was false and that she relied upon it to purchase the car. However, it is not hearsay. Although it is an oral statement made by the salesman outside court (at the garage), which the woman repeats in court, she is repeating it to prove it was said and not that it is true.
Statement 2 is hearsay: it is an oral statement made by her friend outside court that the woman is repeating to prove its truth – that the company is untrustworthy. However, the evidence is inadmissible because it is opinion and not based on facts personally perceived by the woman’s friend (just as the friend could not give this evidence herself to the court, so the woman cannot repeat it to the court).
A company wishes to call evidence from experts in support of their claim for breach of contract. The case involves a dispute about the installation of an online booking system for the company’s national and international hotel chain. There have been numerous problems with the system including rooms being double booked and customers’ details being lost. The defendant argues that this is due to the claimant’s employees’ failure to operate the system properly rather than the highly technical defects alleged by the company. The company is claiming £125,000 being the cost of a replacement system and £1,395,250 as damages for loss of profits.
Which of the following best describes the approach that the court will take to expert evidence?
A) Each party will be granted permission to instruct experts on the issues of liability and quantum.
B) The experts will be ordered to meet to identify the areas of agreement and disagreement and the judge will be made aware of these discussions.
C) Although it is preferable for the expert’s evidence to be included in the form of a report, a written statement is also acceptable.
D) The duty of the expert is primarily to the party instructing them but they must bear in mind their additional duty to the court.
E) The court will order that the issues are to be decided on the basis of the written reports alone.
CORRECT ANSWER A - Because of the complexity of the issues and the amounts in dispute, this case is not suitable for a single joint expert and each party would be granted permission to instruct separate experts on both liability and quantum.
Option B is wrong in that, whilst there would be a discussion between the experts (whether face to face or by telephone or video conference), this is without prejudice and so the judge would not be made aware of what was discussed. Option C is wrong as, to be admissible, the expert’s evidence must be in the form of a report that complies with Part 35. The overriding duty of the expert is to the court – hence, option D is wrong – although the expert also owes
a duty to the party instructing them to exercise reasonable care and skill. Option E is wrong because, although a court could order that the issues be decided on the basis of written reports only, this is unlikely in a dispute over technical matters involving the suitability and operation of an online booking system and the claim for damages of over £1 million is likely to be hotly contested.
TRUE OR FALSE:
there are no differences between a witness statement and an affidavit?
FALSE - A witness statement is not sworn or affirmed but instead it is made with a statement of truth that reads: ‘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.’ By way of information, witness statements are dealt with generally in CPR PD 32 and statements of truth in CPR Part 22 and PD 22.
An affidavit is sworn or affirmed in the jurat before a person authorised to take it, such as an independent solicitor. A person swears to tell the truth on the holy book of their religion. To affirm is to promise to tell the truth. By way of information, the jurat is the statement at the end of the affidavit authenticating it. It bears the signature of the person making it (often called the deponent) and usually reads, ‘Sworn (or affirmed) this (date) at (full address) before me (signature of person taking the affidavit followed by their name and qualifications)’. By way of information, affidavits are dealt with generally in CPR PD 32.
Which of the following about evidence and the standard of proof in civil proceedings is correct?
A) A party who asserts a fact in their claim or counterclaim or additional claim must always prove it.
B) The standard of proof in all civil cases is beyond a reasonable doubt.
C) The standard of proof in all civil cases is on the balance of a reasonable doubt.
D) The more serious an allegation in a civil case, the higher the standard of proof.
E) In a civil case, the trial judge must be persuaded that the relevant contested version of events in the claim or counterclaim or additional claim is more likely to be true than that of the defendant.
CORRECT ANSWER E - By way of information, Lord Nicholls of Birkenhead in Re H (Minors) (Sexual Abuse) [1996] 1 All E.R. 1 at [16] stated, “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.”
Option A is wrong. If a fact is admitted, it does not have to be proved. There are also very limited circumstances in which the burden of proof is reversed.
Option B is wrong. The standard of proof in criminal cases is normally ‘beyond a reasonable doubt’. The standard of proof in civil cases is generally proof ‘on the balance of probabilities.’ By way of information, note that an application for committal to prison for contempt of court, although a civil matter, is of such a serious nature that the criminal standard of proof applies to it.
Option C is wrong. There is no such standard of proof as on the balance of a reasonable doubt.
Option D is wrong. By way of information, this was explained by Lord Nicholls of Birkenhead in Re H (Minors) (Sexual Abuse) [1996] 1 All E.R. 1 at [16]. “When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”
TRUE OR FALSE:
documentary evidence is irrelevant when a trial judge is assessing oral evidence from a witness of fact?
FALSE - The judge will take into account all relevant evidence when assessing the evidence submitted by parties in a case. By way of information, this particular point was explained by Arden LJ in Re Mumtaz Properties Ltd v Ahmed [2011] EWCA Civ 610 at [12] and [14] in the following way, “The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence … Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence”.
Which of the following about non-expert (factual) evidence is correct?
A) Any fact which needs to be proved by the evidence of a witness at trial must be proved by that witness giving oral evidence.
B) No witness can be called to give evidence at trial unless their written statement setting out the oral evidence intended to be relied on at trial has been exchanged earlier in accordance with the court’s case management direction.
C) Witness statements that have been exchanged in accordance with the court’s case management direction will stand as the examination-in-chief of those witnesses at trial unless the court orders otherwise.
D) A witness statement must be prepared in English and, if necessary, translated into the witness’s own language.
E) A witness statement must be written in the third person and none of the witness’s own words should be used.
CORRECT ANSWER C - It means that when preparing a witness statement to be used at trial, it is essential to ensure that the statement is comprehensive. The CPR provides that a witness may amplify their statement or give evidence of matters that have arisen since they served their witness statement, or in response to matters dealt with by another party’s witness, but only if the court gives permission. The court will not do so unless it considers that there is good reason why the evidence was not dealt with by the witness in their witness statement. Pursuant to the overriding objective, a court will usually allow amplification or additional examination-in-chief where admitting that evidence will not cause any other party injustice.
Option A is wrong. The CPR provides that as a general rule (to which there are exceptions) any fact which needs to be proved by the evidence of a witness at trial has to be proved by that witness giving oral evidence.
Option B is wrong. No witness can be called to give evidence at trial unless either their written statement setting out the oral evidence intended to be relied on at trial has been exchanged earlier in accordance with the court’s direction or the court otherwise grants its permission.
Option D is wrong. A witness statement should be drafted in the witness’s own language. The CPR provides that where a witness statement is in a foreign language: (a) the party wishing to rely on it must (i) have it translated; and (ii) file the foreign language witness statement with the court; and (b) the translator must sign the original statement and must certify that the translation is accurate.
Option E is wrong. A witness statement must be written in the first person and the witness’s own words should be used.
TRUE OR FALSE:
assuming that none of the facts to be proved listed in the chart below are admitted, the chart has been completed accurately?
FACT to be proved - BURDEN on
breach of contractual term - Claimant
Causation - Claimant
Contributory Neg - Defendant
Mitigation of loss - Claimant
FALSE -
breach of contractual term - Claimant
Causation - Claimant
Contributory Neg - Defendant
Mitigation of loss - Defendant
TRUE OR FALSE:
experts are witnesses who have acquired, by study or experience, some scientific, technical or other specialised knowledge which may assist the court to determine a fact in issue in the proceedings?
TRUE - By way of information, note that section 3(1) of the Civil Evidence Act 1972 provides that where a person is called as a witness in any civil proceedings, their opinion on any relevant matter on which they are qualified to give expert evidence shall be admissible in evidence [emphasis added].
Which one of the following about experts is correct?
A) An expert’s duty to the party instructing the expert is based solely in the tort of negligence.
B) Experts instructed to give or prepare evidence for civil proceedings have a duty to help the court on matters within their expertise that is equal to the duty that experts have to act in the best interests of their clients.
C) A person who is employed by a party can never act as an expert for that party because experts must give objective and unbiased opinions.
D) An expert witness should not assume the role of an advocate.
E) Parties have an unlimited right to use expert evidence in civil proceedings.
CORRECT ANSWER D - Experts should not take it upon themselves to promote the point of view of the party instructing them. Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
Option A is wrong. Under section 13 of the Supply of Goods and Services Act 1982 experts also owe a contractual duty to exercise reasonable care and skill to those instructing them.
Option B is wrong. Experts owe an overriding duty to help the court on matters within their expertise. This duty overrides any obligation to the person instructing or paying them. Experts must not serve the exclusive interest of those who retain them. By way of information, this is provided for in CPR rule 35.3.
Option C is wrong. An expert is not disqualified by the fact of being employed by one of the parties, although the court will need to be satisfied that the expert is sufficiently aware of their responsibilities to the court, particularly as to giving objective and unbiased opinions. By way of information, the authority for this is Field v Leeds City Council [1999] EWCA Civ 3013.
Option E is wrong. The court will determine if expert evidence is necessary to decide an issue or whether it will otherwise assist the judge in determining an issue. The court will also determine the amount and type of expert evidence to be given at trial.
TRUE OR FALSE:
when a party applies to the court for permission to rely on expert evidence, they must provide the name of their proposed expert?
FALSE - Most decisions about expert evidence are made by way of a case management direction. When a party applies for permission, they must provide an estimate of the costs of the proposed expert evidence and identify the field in which expert evidence is required and the issues which the expert evidence will address; and where practicable, the name of the proposed expert. By way of information, this is provided for in CPR rule 35.4.
TRUE OR FALSE:
the court will direct that following the exchange of reports and answering of any questions, the parties’ experts are to meet and attempt to settle the proceedings?
FALSE - The power to direct a discussion (it does not have to be a face-to-face meeting but may be conducted by telephone or video conference) is discretionary. It may be exercised at any stage but usually when the court gives case management directions. Moreover, its purpose will not be to seek to settle the proceedings but to (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues. By way of information, this is provided for in CPR rule 35.12.
Which of the following about the contents of an expert’s report is correct?
A) An expert’s report should be addressed to the party from whom the expert received instructions.
B) An expert’s report that addresses an area where there is a range of opinion must summarise the range of opinions and give reasons for the expert’s own opinion.
C) An expert’s report must state from whom the expert received their instructions but no details of the instructions should be included as they are confidential.
D) The expert’s qualifications detailed in the report must be limited to their academic qualifications.
E) The statement of truth should read, ‘I understand my duty to the court and I confirm that I have complied with this and that I am aware of the requirements of the Civil Procedure Rules, Part 35 and the Guidance for the Instruction of Experts in Civil Claims 2014. 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.’
CORRECT ANSWER B - By way of information, note that if the summary of the range of opinion is based on published sources, experts should explain those sources and, where appropriate, state the qualifications of the originator(s) of the opinions from which they differ, particularly if such opinions represent a well-established school of thought.
Option A is wrong. An expert’s report should be addressed to the court and not to the party from whom the expert has received instructions. This reflects the fact that the expert’s duty is owed to the court. By way of information, the form and content of an expert’s report is prescribed by CPR PD 35 paragraphs 3.1 to 3.3.
Option C is wrong. The report must contain a statement setting out the substance of all facts and instructions, whether written or oral, which are material to the opinions expressed in the report or upon which those opinions are based.
Option D is wrong. The details of experts’ qualifications in reports should include any academic and/or professional qualifications. Note that where highly specialised expertise is called for, experts should include the detail of the particular training and/or experience that qualifies them to provide that specialised evidence.
Option E is wrong. The statement of truth should read, ‘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. 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.’ A separate statement is required confirming that the expert understands their duty to the court and has complied with that duty; and is aware of the requirements of CPR, Part 35, PD 35 and the Guidance for the Instruction of Experts in Civil Claims 2014.
