Witness and Expert Evidence

Question 1

What are the three stages of preparing and exchanging evidence between case management stage and trial?

Answer 1

1. Disclosure and inspection of documentary evidence
2. Witnesses of fact
3. Expert evidence

Question 2

What are examples of witness evidence?

Answer 2

For trial: Witness is a pedestrian who was injured by a driver on their phone.
For interim hearing: Witness is a solicitor giving evidence on amending a defence statement, about the promptness of application to amend and why the thing was wrong.

Question 3

How can facts in issue be proved?

Answer 3

1. Documents, which are disclosed and then certain documents can be inspected
2. Witness evidence: Witnesses of fact, expert witnesses
3. Real evidence - items

Question 4

How can the court control evidence?

Answer 4

Gives directions as to:
• The issues on which it requires evidence
• The nature of the evidence it wants
• The way the evidence is to be placed before the court

The court can also:
• Exclude evidence that would otherwise be admissible
• Limit cross-examination

Question 5

What is a witness statement?

Answer 5

A written statement signed by a person which contains evidence that the person would be allowed to give orally. This is exchanged between parties. It saves time and costs and tries to facilitate settlement.

Question 6

What is the role of a witness statement at trial?

Answer 6

A witness statement is usually the witness’s evidence in chief at trial. The witness confirms the truth of the statement. The other party’s counsel cross-examines the witness. The witness is re-examined by their own party.

Question 7

When are court directions on service of witness statements usually given?

Answer 7

These are usually given at the allocation and case management stage.
- Date for exchange with the other party
- Could limit the issues
- Could identify witnesses whose evidence may be used
- Could limit the number, length, or format of witness statements
- Could specify order in which witness statements are to be served

Question 8

How can a party ensure they can rely on a witness statement?

Answer 8

They must either:
- Call the witness to give oral evidence at trial
- Put the statement as hearsay evidence in accordance with the procedure required by rules

Question 9

What happens if a witness statement is not served in time specified by the court?

Answer 9

The witness may not be called to give oral evidence unless the court gives permission.

Question 10

How can the time for serving witness statements be extended?

Answer 10

Parties can agree in writing extensions of up to 28 days for serving and filing, if ordered, with need for court approval, provided that the extension does not put the hearing at risk. If it does affect a key date or parties do not agree, an application should be made to the court.

Question 11

What happens if a witness statement is served late?

Answer 11

An application would need to be made for relief from sanctions. This is a relief from the sanction that the witness may not be called to give evidence.

Question 12

What is the court’s discretion regarding the presentation of evidence at trial?

Answer 12

The court can give permission to a witness giving oral evidence to amplify the witness statement or give evidence in relation to new matters. But will not allow if this is just an unjustified change of approach to remedy deficiencies in argument.

Question 13

Where can a witness statement be used?

Answer 13

Only in the proceedings in which it is served. Unless, the witness or the court has given permission for some other use or it has been put in evidence at a hearing held in public.

Question 14

What is required for interim applications supported by witness statements?

Answer 14

The vast majority of interim applications must be supported by written evidence setting out facts. A respondent will also rely on written evidence to oppose the application. It will often be in a witness statement and address the interim application issues only.

Question 15

What should the content of witness statements cover?

Answer 15

It should cover every fact that needs to be proved by the witness’ evidence. Usually lawyers draft and allow the witness to edit.

Question 16

What is the general rule regarding opinion evidence?

Answer 16

The general rule is that the opinions of witnesses are not admissible. Exceptions include perceived facts and expert opinion.

Question 17

What are perceived facts in witness statements?

Answer 17

A person giving an opinion on any relevant matter on which they are not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by them, is admissible as evidence of what they perceived. e.g. car was fast, she was drunk.

Question 18

How is a witness statement verified?

Answer 18

It must be verified by a statement of truth. A witness who lies may face proceedings for contempt of court. Solicitor should advise on implications.

Question 19

Who can give a witness statement?

Answer 19

A witness statement is always given by an individual, not a company or partnership.

Question 20

What should a witness statement include in the heading?

Answer 20

• Party
• Initial and name
• Number of statement
• Exhibits
• Date of signing

Question 21

What should a witness statement include in the early content?

Answer 21

• Witness name
• Witness address
• Witness occupation
• Fact that witness is party or employee of party
• Process of how statement was prepared
• Information and belief paragraph

Question 22

What should a witness statement include regarding exhibits?

Answer 22

The witness can refer to documents which should be verified and identified by the witness and remain separate.

Question 23

What should a witness statement include at the ending?

Answer 23

Statement of truth. Signed by witness.

Question 24

What are the formatting differences for witness statements prepared not for trial?

Answer 24

Early paragraph: saying what application it refers to. Later paragraph: what the witness wants the court to do in relation to the interim application.

Question 25

What is the form of witness statements for trials at Business and Property courts?

Answer 25

• Identify what documents the witness has referred to
• Include a signed confirmation that they understand that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case.
• Include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.

Question 26

When should an affidavit be given?

Answer 26

When required by court or rule, e.g., application for search order or freezing order. Or a party can choose to give evidence by affidavit at a hearing other than a trial. It is an alternative way of giving evidence of fact.

Question 27

What is an affidavit?

Answer 27

A written statement of evidence that is sworn before a person authorised to administer affidavits. The content is the same as a witness statement, but the form is different. A person who gives evidence by affidavit is called a deponent.

Question 28

What is the form of an affidavit?

Answer 28

• Labelled affidavit
• Introduction says ‘state an oath’
• Exhibit wording is different
• The ending says ‘sworn at’. It is a jurat rather than a statement of truth. It must be signed by all deponents and by the person before whom the affidavit was sworn, along with this person’s address. Should not be on a different page.

Question 29

What is the rule for admissibility of evidence relevant to facts?

Answer 29

The general rule is that all evidence that is relevant to the facts is admissible in civil proceedings. But, special rules for: Opinion evidence - not allowed except for expert and perceived facts; Evidence which is privileged - legal advice, litigation, without prejudice communication; Hearsay evidence - allowed but with more scrutiny.

Question 30

What is the general rule for hearsay evidence?

Answer 30

Hearsay evidence is admissible in civil proceedings. But it is indirect evidence and so is treated carefully.

Question 31

What is hearsay?

Answer 31

• An oral or written statement
• Made out of court
• Which is being adduced in court to prove the truth of the matter stated.

Question 32

What are the special rules on hearsay?

Answer 32

Notice must be given in witness statement or hearsay notice. Opposing party has 4 options upon receipt of notice.

Question 33

How should notice be given for hearsay evidence?

Answer 33

If in witness statement of person giving oral evidence at trial: No formal notice required; Notice deemed served when witness statements are served on the other party. If in witness statement of person not giving oral evidence: No formal notice required; But other party must be informed that witness will not be giving evidence at trial, with reasons. All other cases: Formal notice must be given; Identify the hearsay, state that the party wishes to rely on it, and why the witness will not be called.

Question 34

What happens if notice is not given when it should be?

Answer 34

The evidence will still be admissible, but the weight the court attaches to it is likely to be less and the offending party may be penalised in costs.

Question 35

How can a party respond to a receipt of a notice of intention to rely on hearsay?

Answer 35

1. Request particulars of hearsay that are reasonable and practicable for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.

Question 36

How can a party respond to a receipt of a notice of intention to rely on hearsay?

Answer 36

1. Request particulars of hearsay that are reasonable and practicable for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.
2. Call from cross-examination: If the party does not call the source of hearsay info as a witness, any other party may, with leave of court, call them as a witness and cross-examine as if the hearsay statement was the evidence in chief. Application must be made no later than 14 days after the hearsay notice was served on the applicant.
3. Challenge the weight of the hearsay evidence: Court will consider whether the party should have produced the maker of the statement as a witness, whether the original statement was made contemporaneously to matters stated, and whether evidence involves multiple hearsay.
4. Attack the credibility of an absent witness: Show previous inconsistent statements. Should notify the adducing party of intention to do so no later than 14 days after the hearsay notice was served on the applicant.

Question 37

What is hearsay in plans, photographs, models?

Answer 37

The definition of hearsay evidence includes oral statements and statements made in documents or any other medium. There are notice rules to be followed for evidence that is: not contained in a witness statement or expert’s report; not to be given orally at trial; or not subject to the notice of intention to rely on hearsay provisions discussed earlier in the section.

Question 38

What is the conviction as evidence in civil proceedings?

Answer 38

The fact that a person has been convicted of an offence in a UK court is admissible in evidence to prove that he committed the offence. 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 39

What is expert evidence?

Answer 39

An expert is generally a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise. A court order is required for a party to adduce expert evidence at trial.

Question 40

Is opinion allowed in expert evidence?

Answer 40

Yes! It’s one of the two exceptions. His opinion on the ‘relevant matter’ is allowed. The court decides who is an expert. They should be suitably qualified and experienced.

Question 41

When will the court allow expert evidence?

Answer 41

The court has a duty to restrict to that which is reasonably required. Court’s permission is needed. Can instruct as many experts as a party likes, but permission is needed to rely on evidence in proceedings. This is usually obtained by seeking a direction from the court at the case management stage.

Question 42

What are the rules for expert evidence in small claims track and fast track?

Answer 42

The court is more likely to restrict expert evidence in these tracks.

Question 43

What are the rules for expert evidence in fast track?

Answer 43

Oral expert evidence is limited to one expert per party in relation to any expert field and expert evidence in two expert fields.

Question 44

How to apply for permission for expert evidence?

Answer 44

Parties should, in the directs questionnaire: (a) Provide an estimate of the costs of the proposed expert evidence; (b) Identify the field in which expert evidence is required and, if practicable, the name of the proposed expert. Caution with naming, because will need consent to change name or may have to allow the other party to see the original expert’s report.

Question 45

What is the duty and role of an expert?

Answer 45

The overriding duty is to help the court on matters within their own expertise. Expert evidence presented to a court should be the independent product of the expert. Independent assistance should be provided to the court by way of objective, unbiased opinion regarding matters on which they are expert. State facts/assumptions on which opinion is based, as well as facts which could detract. Clear when the question falls outside of expertise. If insufficient data, state. If changes mind, communicate. Provide documents referred to.

Question 46

Which documents in communication with experts can be inspected?

Answer 46

The letter of instruction to an expert is not privileged from inspection. The court will not, however, require disclosure and inspection of a specific document or allow cross-examination of the expert in relation to those instructions unless it considers that the instructions, as summarised by the expert in the report, are inaccurate or incomplete.

Question 47

What should the expert report look like?

Answer 47

Written report. • Be addressed to the court, not the instructing party. • Set out the expert’s qualifications. • Set out details on any material relied on. • Set out the substance of all facts and instructions given to the expert which are material to the opinions. • Make it clear which of the facts stated in the report are within the expert’s own knowledge. • Explain who carried out any test or experiment relied on, give the qualifications of that person and say whether this was under the expert’s supervision. • If there is a range of opinion on the matters dealt with in the report, summarise the range of opinion and give reasons for the expert’s own opinion. • Contain a summary of the conclusions reached by the expert. • If the expert is not able to give an opinion without qualification, state the qualification. • Contain a statement that the expert understands their duty to the court and has complied with it. The report should be verified by a statement of truth (35 PD 3.3).

Question 48

What about earlier drafts of expert report?

Answer 48

Generally subject to litigation privilege. Privilege will be waived in the final version of the report when it is served.

Question 49

What is the exchange of expert evidence?

Answer 49

Experts’ reports must be exchanged with the other side in order to be used at trial. There is usually a direction to this effect at the direction stage. Failure to exchange in accordance with the given directions means that the evidence cannot be used unless the court gives permission.

Question 50

What are single joint experts?

Answer 50

Parties can agree to appoint a single joint expert to save costs. This is encouraged. Often ordered in small claims track and fast track. Less appropriate for multi.

Question 51

What are the questions to other party’s expert or joint expert?

Answer 51

The following provisions apply: • Questions can only be put once. • Questions should generally only be for the purposes of clarifying the report. • Questions must be submitted to the expert within 28 days of service of the report. • A copy of the questions must be sent to the other party. • There is no time limit within which the expert must answer questions unless ordered by the court. • Answers to the questions become part of the report. • If the expert does not answer, the court can order that the party who instructed the expert cannot rely on their evidence and/or cannot recover the expert’s fees from the other party.

Question 52

What about questions by experts to the court?

Answer 52

Experts may submit written requests for direction to the court. The expert must: (a) provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court; and (b) provide a copy to all other parties at least 4 days before filing it at court. The court, when it gives directions, can direct that a party also be served with a copy of the directions.

Question 53

What about discussions between experts?

Answer 53

Court directs experts to discuss issues so they can reach an agreed opinion. They produce a joint statement. Neither parties nor lawyers attend. Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound. However, parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs. These meetings are without prejudice.

Question 54

What about oral expert evidence at trial?

Answer 54

In small claims and fast track - only if in the interests of justice. Otherwise, then each side will call an expert to give evidence. Or, the court can direct expert evidence to be given on an issue-by-issue basis = hot tubbing.

Question 55

What to do if receiving an unfavourable expert report?

Answer 55

If a party receives an unfavourable report from an expert they instructed: - Put questions to the expert. - Seek advice from another expert (seek permission from court, and if not given permission, can use a different expert to help in preparing questions). - If no direction on oral evidence, seek such direction from the court. If a party wants a different expert, then requires court’s permission. If takes evidence of second expert, the court will often only allow this on the condition that the first report be disclosed. Second expert will only be permitted in exceptional circumstances. Possible costs sanction. If a party decides not to rely on expert report, the other party can. Ultimately, should be thinking about settlement.