Witness And Expert Evidence Flashcards
what limitations can the court invoke in terms of evidence?
- exclude evidence as rendering it inadmissible
- limit cross-examination
the court can control evidence by giving directions as to —
- the issues if the evidence
- nature of the evidence
- way in which the evidence can be placed before the court
for witness evidence, the court may give directions —
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements.
the general rule is that any fact which needs to be proven by witness evidence is to be proved —
- at trial, by their oral evidence given in public; and
- at any other hearing, by their evidence in writing.
may the court allow witness evidence by video link or other means?
Yes.
what is a witness statement?
a written statement signed by a person which contains the evidence which that person would be allowed to give orally
service of witness statements.
The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
in terms of witness statements, the court may give directions as to —
(a) the order in which witness statements are to be served; and
(b) whether or not the witness statements are to be filed.
how will an examination in chief be conducted in a civil trial?
the witness statement alone shall stand as an examination in chief, unless the court orders otherwise.
when must a party call the witness to give oral evidence unless the court orders otherwise?
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,
what happens to the weight of the evidence if the witness is not called to give evidence?
the witness statement will be put as hearsay evidence
If a party who has served a witness statement does not call the witness to give evidence at trial or put the witness statement in as hearsay evidence, what can the other party do?
any other party may put the witness statement in as hearsay evidence.
can a witness giving oral evidence at trial amplify his witness statement and give evidence in relation to new matters which have arisen since the witness statement was served on the other parties?
Yes. With the permission of the court.
The court will give permission only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.
what is the rule for evidence at hearings other than a trial?
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.
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.
Order for cross-examination other than trial
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.
But, if the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.
what is the consequence of failing to serve a witness statement or summary?
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.
what is a witness summary?
A witness summary is a summary of—
- the evidence, if known, which would otherwise be included in a witness statement; or
- if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.
A party who is required to serve a witness statement for use at trial but is unable to obtain one, may do what?
Apply, without notice, for permission to serve a witness summary instead.
unless the court orders otherwise, what are requirements for a witness summary?
Unless the court orders otherwise:
- a witness summary must include the name and address of the intended witness.
- a witness summary must be served within the period in which a witness statement would have had to be served.
cross-examination on a witness statement
Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement, whether or not the statement or any part of it was referred to during the witness’s evidence in chief
A witness statement or affidavit may be used only for the purpose of the proceedings in which it is served, unless what?
(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.
what is the general rule of inspection of witness statements?
A witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs.
what are the courts powers for inspection of witness statements?
- the court may make a direction that a witness statement is not open to inspection.
- the court may exclude from inspection words or passages in the statement.
the court may make a direction for a witness statement to not be open for inspection if it is satisfied that —
(a) the interests of justice;
(b) the public interest;
(c) the nature of any expert medical evidence in the statement;
(d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or
(e) the need to protect the interests of any child or protected party.
what are the consequences for false witness statements?
Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.
when must evidence of affidavit be used?
Evidence must be given by affidavit, instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.
a party may request in any other case but will bare the cots of doing do
what is a notice to admit facts?
A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.
A notice to admit facts must be served no later than 21 days before the trial.
notice to admit a document
A party shall be deemed to admit the authenticity of a document disclosed to them unless he serves notice that he wishes the document to be proved at trial.
Where the other party makes any admission in response to the notice the admission may be used against him only—
(a) in the proceedings in which the notice to admit is served; and
(b) by the party who served the notice.
when may a notice to prove a document be served?
(a) by the latest date for serving witness statements; or
(b) within 7 days of disclosure of the document,
whichever is later.
amplifications of evidence. Commentary 32.5.2
- Obvious circumstances in which witnesses may wish to amplify their witness statement and give evidence as to new matters are where events occur, or matters are discovered, after their statements were served, or where responses to matters dealt with in witness statements of witnesses of other parties are required.
- A late, unjustified change of tack may be regarded as an injustice to the opponent which, in the light of the overriding objective should not be permitted.
what is a witness summons?
A document issued by the court requiring a witness to—
(a) attend court to give evidence; or
(b) produce documents to the court.
what can a witness summons require a witness to do?
A witness summons may require a witness to produce documents to the court either—
(a) on the date fixed for a hearing; or
(b) on such date as the court may direct.
The only documents that a summons under this rule can require are documents which that person could be required to produce at the hearing.
requirements for a witness summons?
- must be in the relevant practice form.
- there must be a separate witness summons for each witness.
when must a a party obtain permission from the court to issue a summons?
(a) have a summons issued less than 7 days before the date of the trial;
(b) have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or
(c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.
when is a witness summons issued?
A witness summons is issued on the date entered on the summons by the court
where must a witness summons be issued?
(a) the court where the case is proceeding; or
(b) the court where the hearing in question will be held.
can the court vary or set aside a witness summons?
Yes.
witness summons in aid of inferior court or tribunal
- The court may issue a witness summons in aid of an inferior court or of a tribunal.
- The court which issued the witness summons under this rule may set it aside.
- In this rule, “inferior court or tribunal” means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.
time for serving a witness summons
- The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.
- The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.
- it is binding until the conclusion of the hearing at which the attendance of the witness is required.
who is to serve a witness summons?
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.
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 under rule 34.7.