Witness and expert evidence Flashcards
Witness statement
A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally (evidence in chief)
They are exchanged with the other parties
A witness statement must be in the witness’ own words although it will usually be drafted by a lawyer.
What must a party do if it wishes to rely on a witness statement of a witness at trial?
If a party has served a witness statement of a witness and wishes to rely on it, the party must call the witness to give oral evidence at trial or put in the statement as hearsay evidence in accordance with the procedure required by the rules
What happens if witness statement is not served within the specified time?
, the witness may not be called to give oral evidence unless the court gives permission
Can a witness give evidence relating to new evidence at trial?
YES, but with court’s permission
How to extend time for serving witness statements?
The parties can agree in writing extensions of up to 28 days for serving (and filing, if that has been ordered) of witness statements without the need for court approval provided any such extension does not put a hearing at risk
In the event that an extension of time is agreed before witness statements are due to be served which does have an effect on a subsequent key date, an application should be made to the court for the extension
if an extension of time cannot be agreed before witness statements are due to be served, an application to the court should be made.
Admissibility of witnesses’ opinion evidence
General rule: opinions of witnesses are not admissible. Witnesses are normally confined to stating the facts.
Exceptions:
Perceived facts (with their own senses)
Examples: ‘the car was driving fast’ or ‘Leanne was drunk’
Expert opinions (on which they are qualified to give evidence on)
What happens if there is a false statement in a witness statement?
A witness statement must be verified by a statement of truth. A witness who makes a false statement in the witness statement without an honest belief in the truth of that statement, may face proceedings for contempt of court
Affidavit - what is it? When are they used?
Affidavits serve the same purpose as witness statements, but they take a different form and must be sworn before a person authorised to administer affidavits.
Affidavits must be used in an application for a search order or a freezing injunction
What is the person who gives evidence by affidavit called?
Deponent
Form of an affidavit
Introduction - state an oath (specific to affidavits)
Ending - jurat:
Jurat is a statement at the end which authenticates an affidavit
It has to
Be signed by all deponents
Be completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath)
Contain the full address of the person before whom the affidavit was sworn
Follow immediately on from the text and not be put on a separate page
Is hearsay admissible in civil proceedings?
General rule: admissible (though treated with less weight by courts as it is second-hand evidence)
Hearsay - definition
An oral or written statement
Made out of court
Which is being adduced in court to prove the truth of the matter stated
Notice of intention to rely on hearsay evidence
If a party intends to rely on hearsay evidence at trial, it must give notice to the other party that it intends to do so. The rules specify how the notice should be given:
If the evidence is in a witness statement of a person who is to give oral evidence at trial, no formal notice is required. Notice of the hearsay is deemed served when witness statements are served on the other party; no separate communication is required.
If the evidence is in a witness statement of a person who is not giving oral evidence at trial, no formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons.
In all other cases, formal notice must be given to the other party identifying the hearsay, stating that the party wishes to rely on it and the reason why the witness will not be called.
Consequences of not giving notice of intention to rely on hearsay evidence
If notice is not given when it should have been (usually no later than the latest date for serving witness statements) , 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.
Options on receipt of hearsay notice
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
Call for cross-examination
Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them on the statement as if they had been called by the first-mentioned party and as if the hearsay statement was the evidence in chief
The application must be made no later than 14 days after the hearsay notice was served on the applicant
Challenge the weight of hearsay evidence
Attack credibility of an absent witness (to show that the absent witness made previous inconsistent or contradictory statements)
The receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served
Do you need to give a notice of intention to use hearsay evidence for the use of plans, photographs and models?
YES
Is a court order required if a party wishes to adduce expert evidence?
YES
Who does the expert owe a duty towards?
To the court (and not to their instructing parties)
Is the letter of instruction to an expert privileged?
NO
Is draft expert report privileged?
Yes its litigation privilege, but it will be waived when the final version of the report is served
Exchange of expert evidence - what happens if you fail to exchange expert evidence?
Experts’ reports must be exchanged with the other side in order to be used at trial.
Failure to exchange in accordance with the given directions means that the evidence cannot be used unless the court gives permission
Questions by a party to an expert
Once expert reports have been exchanged, the rules allow a party to put written questions to the other party’s expert, or to the single joint expert, if there is one
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
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
Questions by experts to the court
Experts may submit written requests for direction to the court to help them carry out their task
The expert should 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 provide a copy to all other parties at least 4 days before filing it at court.
Unfavourable expert reports - what can a party do?
Put Qs to the expert
Seek direction for the expert to give oral evidence in court
Seek advice from another expert advisor (+ seek permission to call that other expert at trial with court’s permission; if declined -> a party can use that expert to assist in preparing qs for cross-examination)
If a party decides that it would prefer to call a different expert witness, it must seek the court’s permission to do so
Can criminal conviction to a related accident be prove of guilt in a civil case?
a criminal conviction is admissible in civil proceedings to prove that the person committed the offense, provided it is relevant to an issue in the proceedings. However, the conviction does not conclusively determine the issue; the defendant can challenge the conviction’s relevance or accuracy on a balance of probabilities.
