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Dispute Resolution > Witness and expert evidence > Flashcards

Witness and expert evidence Flashcards

1
Q

What is witness evidence?

A

Direct evidence by a witness of what they have perceived with their own senses

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2
Q

What is expert evidence?

A

A highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise

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3
Q

What are the admissible evidences to prove facts in issue?

A
  • documents
  • witness evidence (witnesses of fact/expert evidence)
  • real evidence
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4
Q

What power does the court have to make directions on evidence?

A
  • on issues which it requires evidence
  • on the nature of the evidence
  • the way evidence is placed before court
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5
Q

What limiting powers does the court have?

A
  • excluding evidence that would otherwise be admissible
  • limiting cross examination
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6
Q

What does the witness statement usually stand as?

A

Witness’s evidence in chief

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7
Q

What is the general rule for witness statements

A

Made by oral evidence (can be video link)

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8
Q

How is service of witness statements determined?

A

Court direction

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9
Q

What must a party do if they have served a witness statement and wish to rely on it in trial?

A
  • call witness to give oral evidence or
  • put in statement as hearsay evidence
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10
Q

What happens if a witness statement is not served in time?

A

witness may not be called without court permission

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11
Q

How can parties extend the time for serving witness statements?

A

Can agree to extend for 28 days as long as doesn’t jeopardise earing date

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12
Q

What should happen if witness statements are served late without an extension being agreed?

A

Application for relief from sanctions (i.e. not being allowed to call witness)

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13
Q

Does a witness only have to give the witness statement as evidence in chief?

A

They can amplofy the statement or give evidence on new matters that have arisen since

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14
Q

When will the court not allow amplification of a witness statement?

A

Late, unjustified change of tack or
remedy deficiencies where injustice to other party

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15
Q

Can a witness statement be used outside of proceedings?

A

if court/witness gives permission or
public hearing

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16
Q

When will a witness statement not be needed for interim applications?

A

Where facts set out in statement of case/application notice

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17
Q

How is witness evidence needed other than for trial proved?

A

in writing

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18
Q

What is the general rule for opinion evidence?

A

Not admissible

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19
Q

What are the exceptions to opinion evidence not being allowed?

A
  • Perceived facts
  • Expert opinion
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20
Q

What must all witness statements end with?

A

Verified by statement of truth

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21
Q

Can a witness statement be made by a company?

A

No

22
Q

What is an affidavit?

A

written statement of evidence sworn before a person authorised

23
Q

What is a deponent?

A

Person who gives evidence by affidavit

24
Q

Is hearsay admissible?

A

Yes

25
Q

What is hearsay?

A
  • oral or written statement
  • made outside of court
  • adduced to prove truth of matter stated
26
Q

What is the notice procedure for hearsay evidence?

A
  • giving oral evidence = no formal notice
  • not giving oral evidence = no formal notice but informing witness not giving evidence and reasons
  • other = notice identifying hearsay, stating wish to rely and reasons why witness not called
27
Q

What can a party receiving a notice of hearsay evidence do?

A

Request particulars

28
Q

What can the opposing party do at court when hearsay evidence is not given in person?

A

Apply to court to call witness and cross examine them

29
Q

When should an application to call a witness with hearsay evidence not given in court be made?

A

No later than 14 days of hearsay notice

30
Q

What factors will the court consider when assessing the weight to attach to hearsay evidence?

A
  • Whether reasonable and practicable for party adducing to produce the maker of the original statement
  • Whether original statement made contemporaneously to matter stated
  • Whether involves multiple hearsay
31
Q

Can an opposing party attack the credibility of a hearsay witness who is absent?

A

Yes - if previous inconsistent/contradictory statements

32
Q

When should a receiving party of a notice to call hearsay evidence with an absent witness notify the adducing party of their intention to attack the witness’s credibility?

A

No later than 14 days of hearsay notice

33
Q

Are plans/photos/models which are hearsay evidence receivable in trial?

A

Only if notice given

34
Q

Can evidence that a person has committed a previous offence (conviction evidence) admissible?

A

Yes if relates to issue in proceedings

35
Q

What can allowing a previous conviction as evidence also allow as admissible evidence?

A

documents which were admissible in evidence for conviction to identify facts on which conviction was based

36
Q

What is required when adducing expert evidence at trial?

A

Court order

37
Q

What is the duty of the court for expert evidence?

A

duty to restrict expert evidence to what is reasonably required to resolve proceedings

38
Q

Does a party need court permission to instruct an expert?

A

No, only if relying on in court

39
Q

Which tracks are more likely to restrict expert evidence?

A

Small claims track and fast track

40
Q

What are the restrictions on expert evidence in fast track cases?

A
  • One expert per party in relation to any field and
  • Expert evidence in two expert fields
41
Q

Is a letter of instruction of an expert privileged?

A

No

42
Q

What form should an experts report be in?

A

Written

43
Q

How can a single joint expert be appointed?

A

Parties agree
Court may only permit a single joint expert

44
Q

What are the rules on putting written questions to an expert?

A
  • Can only be put once
  • Generally for the purposes of clarifying report
  • Submitted within 28 days of service of report
  • Copy of questions sent to other party
  • No time limit to answer unless ordered by court
  • Answers become part of the report
  • If doesn’t answer, court can order party who instructed not to rely on evidence or recover expert’s fees from other party
45
Q

What are the time limits involved when an expert asks a question of the court?

A
  • provide party instructing a copy at least 7 days before filing at court
  • provide copy to all other parties at least 4 days before filing at court
46
Q

Where there are multiple experts from different parties, what is the court likely to direct?

A

Discussion and joint statement

47
Q

Are parties allowed to attend an experts discussion?

A

Not unless court ordered

48
Q

Are expert’s discussion agreements binding?

A

No, but should give reasons for refusal to be binding

49
Q

What can a party argue if they consider an expert has stepped outside their expertise?

A
  • agreement shouldnt be accepted by court
  • adduce further evidence if good reason to suppose the opinion was modified for reasons that cannot properly and fairly support the revised decision
50
Q

What is hot tubbing?

A

Normally claimant gives evidence including expert evidence, then defendant does same.
Hot tubbing where experts called on an issue by issue basis

51
Q

What should happen where there is an unfavourable expert report?

A
  • Seek court permission to call different expert witness
  • Court often only allows where first report is disclosed.
  • If party doesn’t rely on expert’s report, other party may do so.
  • Should be thinking about possibility of settlement.

Dispute Resolution (16 decks)

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