Witness and expert evidence Flashcards
What is witness evidence?
Direct evidence by a witness of what they have perceived with their own senses
I.e. what they have seen
Used at trial and interim applications
What is an expert?
A highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise
Scientific, technical, medical or other issues
What are the 3 types of admissible evidence?
- Documents (disclosure/inspection)
- Witness evidence (testimony)
- Real evidence (real items)
What are the 2 types of witness evidence?
- Witnesses of fact: Direct evidence by a witness of what they have perceived with their own senses
- Expert evidence: Evidence of matters of opinion within their expertise
How does the court have the power to control evidence?
By giving directions re issues on which it requires evidence, the nature of the evidence it wants, how evidence is to be placed before a court
Can the court exclude evidence that would otherwise be admissible?
Yes
They can also limit cross-examination
What is a witness statement?
A written statement signed by a person which contains evidence that person would be allowed to give orally
What is the general rule on any facts which must be proved by the evidence of witnesses at trial?
Will be proved by oral evidence (unless through video link)
Why is a witness statement exchanged with other parties?
- Saves time/costs at trial
- Helps to facilitate settlement (can evaluate merits of respective cases)
What does a witness statement usually stand as at trial?
Witnesses’ evidence in chief - witnesses asked to confirm truth of contents of statement in witness box
Why does a witness attend trial?
Affords opportunity for other party’s counsel to cross-examine them (before re-examination by own party)
When does exchange of witness statements usually happen?
Following disclosure and inspection
Witness statements may need to refer to documents in evidence
Where will directions re exchange of witness statements be given? What will the directions contain?
Allocation and case management stage - will include:
- Date for transfer
- Limiting issues
- Identifying witnesses whose evidence can be used
- Limiting number, length, format of statements
- Specifying order in which statements should be served
Can be ordered for witness statements to be filed at court (unusual)
What should a party do if it serves a witness statement and wishes to rely on it but the witness cannot give oral evidence at trial?
Put in statement as hearsay evidence in accordance with procedure
Can a witness be called to give oral evidence if the witness statement is not served within time specified by court?
Only with permission of the court
How can time be extended for serving witness statements and for how long? Is the court’s permission needed?
Parties can agree in writing extensions of up to 28 days for serving WSs - court’s permission not needed provided the extension does not put the hearing at risk
What happens if the (agreement for an) extension of time does have an effect on subsequent key date?
I.e. put hearing at risk
Application should be made to court for extension under CPR 3 to avoid risk of court not approving agreement
Where no extension is agreed and witness statements are served late, what is the sanction? What should the party being sanctioned here do?
Witness may not be called to give live evidence - should apply for relief from sanctions
What powers does the court have re the presentation of evidence?
I.e. what can the court give permission for parties to do?
- Amplify the witness statement (unlikely if late, unjustified change of tack or to remedy deficiencies)
- Give evidence re new matters which have arisen since WS served
Court can also limit cross-examination
What is the general rule for evidence of witnesses other than for trial?
I.e. interim applications
Is to be provided in writing
For interim hearing, court rlies solely on WS and no cross-examinati
Party may apply for permission to cross-examine
What will be contained in a witness statement for an interim application?
- Evidence setting out facts that justify application
- The issues in the interim application
Respondent will want to rely on written evidence also to oppose app
What is the content of a witness statement and who writes it?
Every fact needed to prove the witness’ evidence - should be in witness’ own words but usually drafted by lawyer and witness amends
Argument, legal basis for argument, facts witness can speak of that supports legal argument
What is the general rule on opinion evidence?
Not admissible unless…
- Perceived facts (conveying relevant facts e.g. “he was drunk”)
- Expert opinion
What happens to a witness that makes a false statement without an honest belief in the truth of that statement?
May face proceedings for contempt of court
WS must be verified by statement of truth
Can a witness statement be used in other proceedings?
No - unless witness/court gives permission for some other use or it has been put as evidence at a hearing held in public
Can a witness statement be given by a company or a partnership?
No - a witness statement is always given by an individual
And signed by them
What accompanies a heading on a witness statement?
An endorsement
Party relying on witness, initial and name of witness, number of statement, date of signing
What information is included in the opening paragraphs of a witness statement?
- Witnesses name
- Home address (or position, employer name and address if made in business capacity)
- Occupation
- Fact that witness is a party/employee of party
- Process through which statement was prepared (face to face, telephone etc.)
What does an information and belief paragraph do?
Clarifies that the facts stated are from matters within their knowledge or belief save where contrary appears. Where matters referred to that they have been told by others, they are true to the best of their knowledge
Are documents referred to in the witness statement kept separate from it?
Yes - they should also be verified and identified by the witness
What does a witness statement end with?
A statement of truth (“I believe the facts stated in this witness statement are true”) and signature
What two extra paragraphs are included in a witness statement for an interim hearing?
- Confirms reason for statement near beginning after information and belief paragraph (e.g. I make this statement in opposition to the C’s application for summary judgement)
- Confirms what the witness would like the court to do in relation to the interim application at the end (D should not be liable for sum…C’s application for summary judgement should be dismissed)
What are the additional rules for witness statements where a) the statement is for use at trial (not interim) and b) the trial is to take place in the Business and Property Courts?
- Statement must identify what documents the witness has referred to for purpose of providing evidence in WS
- Signed confirmation that witness understands that purpose of WS is not to argue case nor take court through documents in the case
- A confirmation from an appropriate legal representative that the rules have been explained to witness and representative believes the WS complies with them
When must evidence be given by affidavit?
Instead of witness statement
If required by the court or a rule (e.g. application for search order or freezing order)
Can also choose to give evidence by affidavit at (not trial) hearing
What is an affidavit?
A written statement of evidence that is sworn before a person authorised to administer affidavits
Deponent = a person who gives evidence by affidavit
Is the content and form of an affidavit the same as a witness statement?
The content is the same but the form is different
Does an affidavit contain a statement of truth?
No - contains a jurat instead which authenticates the document
What are the main differences in form between an affidavit and a witness statement?
- Affidavit has reference to affidavit not WS (e.g. “Affidavit or Cynthia Harbin”)
- Introduction of affidavit contains a state on oath
- Exhibit wording (there is now shown to me marked CH2)
What are the conditions of a jurat?
A jurat must:
- be signed by all deponents
- be completed and signed by person before whom the affidavit was sworn (name and qualification printed underneath)
- contain full address of person before whom affidavit was sworn
- follow immediately from text and not be on separate page
What is the general rule on admissibility of evidence in civil proceedings?
All evidence that is relevant to the facts is admissible in civil proceedings. But there are special rules governing:
1. Opinion evidence
2. Evidence which is privileged
3. Hearsay evidence
What is hearsay?
An oral/written statement made out of court which is being adduced in court to prove the matter stated
Is hearsay evidence admissible?
Yes - but is treated carefully
Is indirect and less reliable than direct oral, documentary or real evi
Direct evidence should be used where possible
How can we get around hearsay?
Requesting the person who (according to another) made the statement to give evidence as a witness themselves
When do the main procedural safeguards re hearsay apply?
For hearsay evidence given at trial
Rules more relaxed at other stages of proceedings
Must a party give notice of their intention to rely on hearsay when hearsay evidence is in a witness statement of a person who is to give oral evidence at trial?
No - notice of hearsay deemed served when witness statement served on other party
Technically notice is required but is satisfied upon exchange of WS
Must a party give notice of their intention to rely on hearsay when hearsay evidence is in a witness statement of a person who is not giving oral evidence at trial?
No - but other party must be informed that witness will not be giving evidence at trial with reasons
Must a party give notice of their intention to rely on hearsay in all other cases?
Yes! Identifying hearsay, stating they intend to rely on it and the reason why the witness will not be called
Where notice to rely on hearsay should be given but is not, will it be inadmissible?
Evidence is still admissible but court likely to attach less weight to it and offending party may be penalised in costs
What are the 4 possible options on receipt of notice of intention to rely on hearsay?
Whether notice given by WS or notice
- Request particulars of hearsay (that are reasonable and practicable for purpose of enabling it to deal with matters arising from hearsay)
- Call for cross-examination - can call statement-maker as a witness and cross-examine as if hearsay evidence was given as evidence in chief
- Challenge the weight of hearsay evidence
- Attack credibility of an absent witness - where party reliant on hearsay does not propose to call person who made original statement to give evidence
What must a party who wishes to cross-examine the hearsay do?
Make an application no later than 14 days after hearsay notice served on applicant
I.e. needs leave of court
What will a court consider when the receiver of hearsay notice wishes to challenge the weight of hearsay evidence?
- Whether it would have been reasonable for party adducing evidence to produce maker of original statement as witness
- Whether original statement made contemporaneously to matters stated
- Whether evidence involves multiple hearsay
What should an attack on the credibility of an absent witness show?
That the absent witness has made previous inconsistent/contradictory statements
If a party wishes to attack the credibility of an absent witness, what must they do?
Notify the adducing party of its intention to do so no later than 14 days after hearsay evidence served
Can plans, photographs and models come under the definition of hearsay?
Yes - and unless notice given the evidence will not be receivable at trial
What type of evidence are there notice rules for?
Evidence that is:
- Not contained in a WS/expert’s report
- Not given orally at trial
- Not subject to notice of intention to rely on hearsay provisions
When will a conviction in a UK court be evidence in civil proceedings? Will the person be taken to have committed offence?
Yes, if proving the offence is a relevant issue to proceedings
- Person shall have been taken to have committed offence unless contrary proved; and
- The contents of any document which is admissible as evidence of the conviction shall be admissible in evidence for purpose of identifying facts on which conviction was based
No other conviction than subsisting one is admissible in evidence
NB a conviction does not end issue within civil proceedings - a person wanting to prove contrary has burden of proving that person convicted did not commit the offence on a balance of probabilities
What happens if a witness writes a witness statement and then dies?
The witness statement becomes hearsay
Why does the exchange of expert evidence follow exchange of witness evidence (and disclosure)?
Experts need to consider both disclosure and witness statements before finalising their reports
Is a court order required if a party wishes to adduce expert evidence?
Yes
Who ultimately decides who is an expert and what experience must they have?
- Court
- Experience need not be formal, but should be suitably qualified and experienced
What should the court restrict expert evidence to? When should permission be refused?
- Only that which is reasonably required to resolve proceedings
- Should refuse permission if issues are factual and do not require expert evidence
- Overriding objective
Court controls evidence by directing the issues that require evidence, the nature of evidence it requires to decide issues, and the way evidence is to be placed before the court
Is the court’s permission needed to instruct an expert?
No - it needs the court’s permission to adduce evidence and rely on it in proceedings
Party may instruct as many experts as it likes
When might expert evidence come under litigation privilege?
If it has been prepared exclusively for that party in contemplation of proceedings and has not been deployed as expert evidence
E.g. employer asks an expert to produce report on employee’s injury it caused, the report is favourable to employee, but this doesn’t matter becaue it is covered by litigation privilege!
How will a party obtain the court’s permission for adducing expert evidence?
By seeking direction from court at case management stage
On what tracks is the court more likely to restrict evidence? What is the condition where permission is given for expert evidence?
Small claims and fast track
If permission is given for expert evidnece - normally given from only one expert on a partiuclar issue
What are some exceptions for expert evidence on the small claims track?
- Experts overriding duty to court
- Court’s power to direct that evidence given by single joint expert
What can oral expert evidence be limited to on the fast track?
One expert per party re any expert field
What must a party provide and identify re the expert evidence they require? Where should this be set out?
- Provide an estimate of the costs of the proposed evidence
- Identify the field in which expert evidence is required (and name of expert if practicable)
Set out in directions questionnaire
Caution with naming expert - might have to go back and re-ask permission if the name is used on the court order and they need to use a different once
Does the expert have a duty to the party instructing them?
The expert’s duty is to help the court on matters within their expertise; overrides obligation to the party instructing them
What is the role of the expert?
Known as the Ikarian Reefer Guidelines
- Information should be independent product of expert (uninfluenced by litigation)
- Assist the course by way of objective, unbiased opinion
- Should state facts/assumptions on which opinion is based
- Make it clear when issues fall outside expertise
- Indicate where opinion is provisional (if insufficient data available)
- Communicate any change of mind to other party
- Photos, plans, survey reports provided at same time as exchange of reports
Is a letter of instruction (to an expert) privileged? Will a court require dislosure and inspection?
Not privileged - but court will not allow disclosure/inspection (cross-examination about it) unless it considers that instructions (summarised in expert’s report) are inaccurate or incomplete
A dodgy final report may suggest that instructions were bad
Must have reasonable grounds to believe it inaccurate/incomplete
What should the expert report contain?
- Addressed to court, not instructing party
- Expert’s qualifications
- Details of any materials relied on
- Facts and instructions given to expert
- Expert’s own knowledge
- Who carried out tests/experiments
- Summarise range of opinion
- Summary of conclusions
- Statement understanding duty to court
Is a draft report to instructing party subject to litigation privilege?
Yes - privilege waived when final version of report is served
Does exchange have to be at the same time?
No - can be simultaenous or sequential
What if a party fails to exchange in accordance with directions?
Evidence cannot be used unless court gives permission
When is a single joint expert appropriate?
Most commonly ordered on small claims and fast tracks (unelss good reason not to). Less likely to be appropriate on multi track
Parties should agree directions providing for use of single joint expert if used on multi track (court can select from list they prepare if they cannot decide)
How is transparency maintained with a single joint expert?
- Expert copied in to all relevant correspondence
- Parties can produce joint letter of instruction (otherwise share instructions with each other)
What is the time limit in post-exchange for parties to put written Qs to other party’s expert/single joint expert? By when must an expert reply?
- Questions must be submitted to expert within 28 days of service of report
- No time limit within which expert must answer
What other rules exist re questions about expert evidence?
- Can only be put once
- Should generally only be for purpose of clarifying report
- Copy of Qs must be sent to other party
- Answers to the Qs become part of report
What can the court order if an expert does not answer a Q put by a party?
Court can order the party who instructed the expert cannot rely on evidence/cannot recover expert’s fees from other party
When an expert submits a written request for a direction from the court to help them with task, what must they do?
- Provide the instructing party with a copy of proposed request at least 7 days before filing it at court; and
- Provide a copy to all other parties at least 4 days before filing it at court
How does instructing party assist experts when the court orders them to do something/something that affects them?
Must serve a copy of the order on the expert (C in the case of a single joint expert)
What should experts from either side produce if court orders them to discuss?
Where each party has submitted evidence from own expert
Produce joint statement setting out agreed and disagreed issues (with reasons)
Are parties bound by agreements between experts?
Not unless parties agree to be bound - but if they do not agree, should come with an explanation
Relevant to issue of costs
Can legal reps/parties attend experts’ discussion?
Not unless ordered by court/agreed between parties and experts
Should not intervene unless answering Q/point of law
What if a party considers their expert to have stepped outside expertise/reached a joint agreement incompetently?
Can argue agreement should not be accepted by court and the party can adduce further expert evidence
If it feels that revised decision is for reasons that cannot properly and fairly support it and this is required to resolve proceedings
Can discsussions between experts be referred to at trial?
Not unless they agree; conversations are without prejudice
If court gives permission to call expert to give oral evidence at trial, how does it direct it be given?
2 ways
- Issue-by-issue basis - each side has a turn to call witness/experts re that issue
- Hot tubbing - some/all evidence of experts from similar disciplines given concurrently
For hot-tubbing: judges ask experts, in turn, for views on issues in agenda
What are the three options to a party who receives an unfavourable report from an expert they instructed/single joint expert?
- Put questions to expert
- Seek direction from court for expert to give oral evidence (if there is not already)
- Seek advice from another expert advisor - costly and harms credibility
Should seriously consider settlement
What does a party need to seek advice from a different expert and what are the rules for adducing second expert evidence? When will permission be given?
- Needs permission to call another expert
- Second expert evidence only allowed to be adduced if first report is disclosed
- Permission only given in exceptional circumstances (original expert changing mind after meeting not a sufficient reason)
What if permission is not given to call another expert?
After receiving unfavourable report
Can use expert advisor to assist in preparing Qs for cross examination
If a party decides it is not intending to rely on its expert’s report once disclosed, is it thrown out?
No - other party can still rely on it at trial
