Witness and expert evidence Flashcards
What is witness evidence?
Direct evidence by a witness of what they have perceived with their own senses
What is expert evidence?
A highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise
What are the admissible evidences to prove facts in issue?
- documents
- witness evidence (witnesses of fact/expert evidence)
- real evidence
What power does the court have to make directions on evidence?
- on issues which it requires evidence
- on the nature of the evidence
- the way evidence is placed before court
What limiting powers does the court have?
- excluding evidence that would otherwise be admissible
- limiting cross examination
What does the witness statement usually stand as?
Witness’s evidence in chief
What is the general rule for witness statements
Made by oral evidence (can be video link)
How is service of witness statements determined?
Court direction
What must a party do if they have served a witness statement and wish to rely on it in trial?
- call witness to give oral evidence or
- put in statement as hearsay evidence
What happens if a witness statement is not served in time?
witness may not be called without court permission
How can parties extend the time for serving witness statements?
Can agree to extend for 28 days as long as doesn’t jeopardise earing date
What should happen if witness statements are served late without an extension being agreed?
Application for relief from sanctions (i.e. not being allowed to call witness)
Does a witness only have to give the witness statement as evidence in chief?
They can amplofy the statement or give evidence on new matters that have arisen since
When will the court not allow amplification of a witness statement?
Late, unjustified change of tack or
remedy deficiencies where injustice to other party
Can a witness statement be used outside of proceedings?
if court/witness gives permission or
public hearing
When will a witness statement not be needed for interim applications?
Where facts set out in statement of case/application notice
How is witness evidence needed other than for trial proved?
in writing
What is the general rule for opinion evidence?
Not admissible
What are the exceptions to opinion evidence not being allowed?
- Perceived facts
- Expert opinion
What must all witness statements end with?
Verified by statement of truth
Can a witness statement be made by a company?
No
What is an affidavit?
written statement of evidence sworn before a person authorised
What is a deponent?
Person who gives evidence by affidavit
Is hearsay admissible?
Yes
What is hearsay?
- oral or written statement
- made outside of court
- adduced to prove truth of matter stated
What is the notice procedure for hearsay evidence?
- 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
What can a party receiving a notice of hearsay evidence do?
Request particulars
What can the opposing party do at court when hearsay evidence is not given in person?
Apply to court to call witness and cross examine them
When should an application to call a witness with hearsay evidence not given in court be made?
No later than 14 days of hearsay notice
What factors will the court consider when assessing the weight to attach to hearsay evidence?
- 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
Can an opposing party attack the credibility of a hearsay witness who is absent?
Yes - if previous inconsistent/contradictory statements
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?
No later than 14 days of hearsay notice
Are plans/photos/models which are hearsay evidence receivable in trial?
Only if notice given
Can evidence that a person has committed a previous offence (conviction evidence) admissible?
Yes if relates to issue in proceedings
What can allowing a previous conviction as evidence also allow as admissible evidence?
documents which were admissible in evidence for conviction to identify facts on which conviction was based
What is required when adducing expert evidence at trial?
Court order
What is the duty of the court for expert evidence?
duty to restrict expert evidence to what is reasonably required to resolve proceedings
Does a party need court permission to instruct an expert?
No, only if relying on in court
Which tracks are more likely to restrict expert evidence?
Small claims track and fast track
What are the restrictions on expert evidence in fast track cases?
- One expert per party in relation to any field and
- Expert evidence in two expert fields
Is a letter of instruction of an expert privileged?
No
What form should an experts report be in?
Written
How can a single joint expert be appointed?
Parties agree
Court may only permit a single joint expert
What are the rules on putting written questions to an expert?
- 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
What are the time limits involved when an expert asks a question of the court?
- 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
Where there are multiple experts from different parties, what is the court likely to direct?
Discussion and joint statement
Are parties allowed to attend an experts discussion?
Not unless court ordered
Are expert’s discussion agreements binding?
No, but should give reasons for refusal to be binding
What can a party argue if they consider an expert has stepped outside their expertise?
- 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
What is hot tubbing?
Normally claimant gives evidence including expert evidence, then defendant does same.
Hot tubbing where experts called on an issue by issue basis
What should happen where there is an unfavourable expert report?
- 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.
