Witness and expert evidence

Question 1

What is a witness compared to an expert?

Answer 1

Witness: Direct evidence by a witness of what they have perceived with their own senses
Expert: a highly skilled individual whose role is to advise the court impartially on matters within their expertise.

Question 2

Witness statements general considerations?

Answer 2

There are two general points when considering witnesses and witness statements

Witness statements
1) Facts in issue must be proved by admissible evidences. 3 types:
- Documents – disclosure is the process whereby each party tells the other what documents they have
- Witness evidence – testimony
o Witnesses of fact – direct evidence by a witness of what they have perceived with their owned senses
o Expert witnesses: evidence of matters of opinion within their expertise.
- Real evidence – adduced as evidence

2) The courts broad power to control evidence. It can give directions as to:
- The issues that require evidence
- the nature of the evidence it wants
- The way the evidence is to be placed before the court
- Can also – exclude evidence, or limit cross-examination

Question 3

What is a witness statement?

Answer 3

General rule CPR 32.2 is that any fact which needs to be proved by evidence will be done so by oral evidence at trial.
A witness statement is a written statement signed by a person which contain the evidence which that person would give orally. 32.4 –
- Therefore, exchanged with other parties/
- Usually stands as the witness’s evidence in chief at the trial. Effectively means that the witness will be asked to confirm the truth of contents in the witness box.
Service of witness statement
- Parties must comply with any direction given. The direction can also relate to:
- Limiting the issues
- Identifying the witnesses whose evidence may be sued
- Limiting the number, length or format of statements
- Specifying the order
If a party has served a witness statement and wishes to rely on it, party must call the witness to give oral evidence at trial.
If witness statement is not served within the time specified the witness may not be called to give oral evidence unless the curt gives permission.

Question 4

Extending the time for service of witness statement?

Answer 4

Extending the time – parties can agree up to 28 days for serving without need for court approval, provided it doesn’t put hearing at risk.
If it will have an effect on a key date, then an application should be made to the court for the extension under CPR 3.
IF NO AGREEMENT AND NO APPLICATION WOULD NEED TO APPLY FOR RELIEF FROM SANCTIONS.

Question 5

Presentation of evidence?

Answer 5

• Court retains discretion on presentation of evidence at trial.
• A witness giving oral evidence, may with permission amplify the witness statement to give evidence in relation to new matters.
• Court may limit cross examination
• A witness statement may only be used for proceedings in which it is serves unless it’s been permitted from some other use.

Question 6

Witness statements for interim applications?

Answer 6

• It will only address the issues in the interim application only.
• General rule is that any fact which needs to be proved by evidence of witnesses other than for trial is to be proved by writing.
• Not oral

Question 7

Content of witness statements?

Answer 7

• Should cover every fact that needs to be proved by witness’s evidence.
• Must be in witnesses’ own words, often lawyer drafts it and witness can amend where appropriate.
• What’s the argument
• What’s the legal basis
• What are the facts that this witness can speak about that support the legal argument.

Opinion evidence
- General rule is that opinions are not admissible. Court must draw its own inferences from the facts stated.
Witness saying what they saw is admissible as direct evidence.
Witness is not qualified to provide on opinion on impact. So inadmissible.

There are 2 situations where opinion evidence is admissible.
- Perceived facts – will be admissible as long as a proper appraisal of the facts does not call for any special expertise.
- Expert opinion- s3 Civil evidence act 1972

Question 8

Form of witness statement and early content?

Answer 8

Must be given by a specific individual and must be signed by that person.
- Must have witness statement – heading and this endorsement
- ‘In the high court of justice kinds bench divisions’
- Parties relying on a witness, initial and name of witness number of statements, exhibits, date of signing.
Early content
- Opening paragraph has
- Witness name
- Home address
- Occupation
- Facts that witness if s a party
- Process through which statement was prepared
- Information and belief paragraphs
- Statement continues in witnesses’ own words and language.
Exhibits
- Witness can refer to documents, these should be verified and identified by witness and remain separate from witness statement. Should refer to it as the description of exhibit.
Witness statement – ending
- Ends with a statement of truth and signed by witness themselves.

Question 9

Witness statements and uses other than trial?

Answer 9

Formatting differences for one prepared for an interim hearing and one for trial.
Two additional paragraphs.
One near beginning - confirms the reasons for the statement
Second section is – at end before statement of truth and confirms what the witness would like the court to do in relation to interim applications

Form of witness statements in business and property courts for TRIAL
- Statement must identify what documents the witness has referred to for purpose of providing evidence set out in their statement
- Must include a signed confirmation that the witness understand purpose of witness statement is not to argue case.
- Must include a confirmation from appropriate legal representative that the rules have been explained to the witness

Question 10

Evidence of fact - affidavit?

Answer 10

Witness statements are main form of evidence of fact, but evidence of fact must be given by affidavit if this is required by court or rule. Or if the party chooses to do so. MUST BE USED FFOR A SEARCH ORDER OR A FREEZING INJUNCTION.
It’s a written statement of evidence, that is sworn before a person authorised to administer affidavits. Content is same as witness statement but form is different. Must comply with special rules.
Heading
- Affidavit of ….
Early content – introduction – ‘state on oath’ is specific to affidavits
Exhibits – ‘there is now shown to me marked “CH2” – the wording for exhibits is specific
Ending – called a jurat – statement which authenticates the affidavit – must be signed by all deponents, be completed and sworn by person before whom the affidavit was sown. Contain full address of person before whom it was sworn, following immediately on from the text and not be put on a separate page.

Question 11

Hearsay and admissability?

Answer 11

Admissibility
General rule is that all evidence relevant to facts is admissible in civil proceedings

Hearsay evidence
General rule is that its indirect evidence, IT IS AMISSAIBLE by virtue of s.1 Civil Evidence Act 1995.
- Its treated carefully by the court
Hearsay
- An oral or written statement
- Made out of court
- Which is being adduced in court to prove truth of matter stated
Special evidence
- Procedural safeguards in CEA 1995 – only apply to those given at trial
- If a party intends to use hearsay, it must consider whether or not it is necessary to give notice of its intention to rely on hearsay.

Hearsay in plans, photographs and models
Also notice rules for any evidence that is:
- Not contained in a witness statement or experts report
- Not to be given orally at trial
- Not subject to the notice of intention to rely on hearsay provisions discussed earlier in the section.

Question 12

Hearsay notice?

Answer 12

If a party intends to rely on it at trial, it MUST give notice to other party that it intends to do so. CPR 32.2
- IF evidence is in a witness statement of a person who is to give oral evidence a trial – NO FORMAL notice is required.
- If evidence is in a written statement who is NOT giving oral evidence at trial – NO FORMAL NOTICE REQURIED BUT OTHER PARTY MUST BE IFNOMRED THAT THEY WILL NOT BE GIVING EVIDENCE AT TRIAL WITH REASONS
- In all other cases formal notice must be given to other party identifying the hearsay, stating that they wish to rely on it and reasons why the witness will not be called.
If notice is not given when it should have been – it’s still admissible but weight given by court is less.

Question 13

Options by a party on receipt of notice of intention to rely on hearsay?

Answer 13

A party has 4 possible options on receipt of a notice of intention to rely on hearsay.
Request particulars of hearsay s.2 CEA 1995
- Request particulars that are reasonable and practicable for purpose of enabling it to deal with any matters airing from evidence being hearsay
Call from cross examination
- May with leave of court call that person as a witness and cross examine. This could be devastating tactically and must be made no later than 14 days after the hearsay notice was served on applicant.
Challenge the weight of hearsay evidence s.4
- The court will consider
- Whether it would have been reasonable and practicable for party who adduced the evidence not have produced maker of original statement as witness
- Whether the original statement was made contemporaneously to the matter stated
- Whether the evidence involves multiple hearsay
Attack credibility of an absent witness
- Attach should show that the absent witness made previous inconsistent or contradictory statements. No later than 14 days.

Question 14

Convictions as evidence in civil proceedings?

Answer 14

• Its admissible to prove that he committed the office. It must be relevant to issue in proceedings. Set out in s11 CEA 1968
• In any civil proceedings in which by virtue of this section a person is proved to have been
• convicted of an offence—
• (a) he shall be taken to have committed that offence unless the contrary is proved; and
• (b) the contents of any document which is admissible as evidence of the conviction (and the
• contents of the information, complaint, indictment or charge-sheet on which the person in
• question was convicted), shall be admissible in evidence for the purpose of identifying the
• facts on which the conviction was based.
• This does not mean that a conviction ends the issue within the civil proceedings. Instead, a person
• wanting to prove the contrary will have the burden of proving that the person convicted did not
• commit the offence on a balance of probabilities.

Question 15

Expert evidence?

Answer 15

What is expert evidence
- An expert is a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.
- A court order is required if a party wishes to adduce expert evidence at trial.
- There are particular rules for submitting expert evidence.

Question 16

Opinion evidence?

Answer 16

Use of expert evidence
Duties of the court – to restrict expert evidence to only that which it reasonably required to resolve the proceedings. Further the overriding objective. Court controls evidence by directing the issues on which it requires evidence
- Party may instruct as many experts as it likes but it needs courts permission to rely on expert evidence in proceedings.
- Small claims track and fast track – more likely to restrict evidence in small claims and fast track.
o Should be given by single joint witness
o One of the factors courts will consider in allocating a claim to the fast track is that oral expert evidence at trial will be limited to
o One expert per party in relation any expert field
o Expert evidence in two expert fields.
- Applying for permission
o When parties apply for permission, they must
o Provide an estimate of costs of proposed expert evidence
o Identify the field in which expert evidence is requires and if practicable the name of proposed expert
o This information should be set out in directions questionnaire.

Question 17

Duty and role of an expert?

Answer 17

• To help court on matters within their expertise and this override any obligation to party instructing the expert.
• Ikarain reefer guidelines –
• Should be independent product of expert
• Independent assistance should be provided to court by way of objective, unbiased opinion regarding matter within the expertise of the expert witness.
• Should state facts or assumptions on which their opinion is based
• Should make it clear when something falls outside of their remit
• Photographs, survey reports and other documents referred to in expert evidence must be provided to otherwise at the same time of exchange of reports.

Question 18

Process of getting expert evidence?

Answer 18

• The letter of instruction to an expert IS NOT privileged from inspection
• Court will not however require disclosure and inspection of a specified document or allow cross-examination of expert in relation to those instructions unless it consider that the instruction as summarised by expert in report are inaccurate or incomplete

Question 19

Expert reports?

Answer 19

• To be given in written report unless court directs otherwise
• Report must be in form required by rules and must
• Be addressed to court, not instructing party
• Set out experts’ qualifications
• Set out details on any materials relied on s
• Set out substance of all facts and instructions given
• Make it clear which of the facts stated are within experts’ own knowledge
• Experts who carried out any test, give qualifications of person who carried out test
• Contain a summary of conclusions reached by the expert
• Statement of truth at end
• If expert produces a draft report before the final one, the first one is usually subject to litigation privileged
  Exchange of expert evidence
• Must be exchanged with otherwise in order to be sued at trial
• Failure to do this means evidence cannot be used unless court gives permission

Question 20

Single joint experts?

Answer 20

Often used in small claims track and fast track matters
A single joint expert should be copied into all relevant correspondence, there should be transparency at all times

Question 21

Questions by a party to expert?

Answer 21

• After reports exchanged rules allow a party to put written questions to other party’s expert or to the single joint expert
• Questions can only be put once
• Generally, for purpose of clarifying report
• Must be submitted to expert within 28 days of service of the report
• A copy of questions must be sent to other party
• No time limit when expert should respond unless court orders it – the answers become part of the report

Question 22

Questions by experts to the court?

Answer 22

• Experts may submit written requests of directions ot help them carry out their task. Unless court orders otherwise, expert must
• Provide to the party instructing the expert, any proposed request for directions at least 7 days before filing at court
• Provide a copy to all other parties at least 4 days before filing it at court
• To assist experts, where an order requires an act to be done by an expert, the party instructing the expert must serve a copy of the order on the expert. Claimant must serve the order on the single joint expert

Question 23

Discussions between experts?

Answer 23

• When each party has submitted evidence from their own experts, rules make provision for court to direct the courts to various expert issues in dispute. This is so experts can identify issues and where possible reach an agreed opinion.
• Usually saves time and cost at trial.
• Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound.
• Unless ordered otherwise, neither party should attend experts’ discussions.
• Any party who considers that its expert has stepped outside their expertise or who has acted incompetently can argue that
• Agreement should not be accepted by court
• Party should adduce further expert evidence if it felt there was a good reason to suppose that the first expert has modified their opinion for reasons that cannot properly and fairly support their revised decision.

Question 24

Oral evidence at trial and hot-tubbing?

Answer 24

• Court may also grant permission to call expert to give oral evidence at trial
• Only if in interests of justice to do so.
• Hot tubbing is where some or all of the evidence of experts from similar disinclines is given concurrently – judge will ask expert in relation an issue

Question 25

Unfavourable expert opinions?

Answer 25

Can put questions to court
SEeek advice from another expert advisor
- if the experts advice differs substantially from what a party was expecting the party may seek permission to call another expert but this is difficult and costly

• if a party is not given permission to call another expert that party can use the expert advisor to assist in preparing questions for cross examination

If there’s not direction for expert to give oral evidence seek such a direction from the court