Witness and expert evidence

Question 1

Three types of admissible evidence

Answer 1

1. Documents
2. Witness evidence
   a) witness of fact
   b) expert witness
3. Real evidence

Question 2

Witness Statement: heading

Answer 2

• Court

Top right:
- party
- initial and last name of witness
- number of statement
- Exhibits
- Date of Signing

Question 3

Witness Statement: opening paragraph

Answer 3

I, [witness name] of [home or work address (if in business capacity), [relation to party (eg if employee), will say as follows:

1. occupation. Process through which the statement was prepared. This witness statement was prepared following face to face discussions with my solicitor.
   (if employee: I am duly authorised by the Defendant to give this statement in support of their application for x)
2. I make this witness statement from matters within my knowledge or believe save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of my information appears.
3. begin telling the story

Question 4

Witness Statement: referring to documents

Answer 4

Witness can refer to documents. These should be verified and identified by the witness and remain separate from the witness statement.

Where referring to exhibit or exhibits say: ‘I refer to the [description] marked [reference].

Question 5

Witness Statement: statement of truth

Answer 5

Always ends with statement of truth

“I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

Question 6

Witness Statement: interim

Answer 6

At beginning: I refer to the application notice dated [x] and make this statement in opposition to the claimant’s application for summary judgement.

At end:
In the circumstances, I submit to the Court for the reasons set out above that the Defendant is not liable for the sum claimed and that the Claimant’s application for summary judgement should be dismissed.

Question 7

Affidavits

Answer 7

Sometimes required by court for evidence of fact:

• freezing order
• search order

They are sworn before a person authorised to administer affidavits

Question 8

Affidavit

Answer 8

Heading: says ‘affidavit of’

Intro: I x, “state on oath”
“I make this affidavit from matters within my knowledge”

Exhibit wording: “There is now shown to me marked [reference]

Ending: sworn by a jurat

Question 9

Jurat

Answer 9

• signed by all deponents
• completed and signed by the person before whom the affidavit was sworn
• contain the fill address of the person before whom the affidavit was sworn
• follow immediately on from the text and not be put on a separate page

Question 10

Hearsay

Answer 10

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

Admissible in civil proceedings

Question 11

Special rules for hearsay

Answer 11

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.

Witness statement of someone giving oral evidence: no need to serve notice, service of the witness statement acts as notice

WS but not giving oral evidence: no formal evidence is required but the other party must be informed that the witness will not be giving evidence (with reasons)

All other cases: formal notice must be given to the other party which identifies the hearsay, stating the party wishes to rely on it and the reason why the witness will not be called.

Question 12

Options of receipt of a notice of intention to rely on hearsay

Answer 12

1. Request particulars of hearsay
   - reasonable and practicable for the purpose of enabling
2. Call for cross-examination
   - other party can call that person as a witness and cross-examine them as if they had been called (application must be made no later than 14 days after the hearsay notice was served on applicant)
3. Challenge the weight the court will attach to the hearsay evidence at trial
   Court will consider:
   - is it practicable for the party who adduced the evidence to produce the maker
   - was original statement made contemporaneously to the matters stated
   - whether evidence involved multiple hearsay
4. Attack credibility of an absent witness
   - attack should show absent witness made previous inconsistent or contradictory statements. Receiving party must notify adducing party of its intention to do this no later than 14 days after the hearsay notice was served

Question 13

Plans, photographs and models as evidence

Answer 13

The party must notify of intention to use plans, photographs and models

Question 14

Convictions as evidence in civil proceedings

Answer 14

Conviction of an offence in a UK court is admissible in evidence to prove he committed the offence.

Proving offence must be relevant to an issue in the proceedings.

Question 15

What is required to adduce expert evidence?

Answer 15

A court order is required.

Although it is opinion evidence it is allowed because it is a relevant matter on which he is qualified to give expert evidence.

Question 16

Duty and Power of the court to restrict expert evidence

Answer 16

Duty:
Court has a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings.
If issues are factual, court should refuse permission for it to be used at trial.
Court controls evidence by directing the issues on which it requires evidence.

Power:
Expert evidence can be adduced only with court’s permission.

Party can instruct as may experts as it likes but needs to permission to rely on expert evidence at proceedings.

Question 17

Restrictions in small claims, fast track and intermediate track

Answer 17

Small: usually single joint expert

Fast: permission is normally only given for evidence from only one expert on a particular issue

Intermediate: two experts per party

Question 18

Application for permission to adduce expert evidence

Answer 18

When parties apply for permission they must:

1. Provide an estimate of the costs of the proposed expert evidence
2. Identify the field in which expert evidence is required and if can, name the proposed expert

Information should be set out in the directions questionnaire.

Be cautious about naming the expert if the name them and then there is an issue with it they may have to show the other party the original expert’s report

Question 19

Duty of an expert

Answer 19

It is the duty of an expert to help the court on matters within their own expertise and this overrides any obligation to the party instructing the expert

Question 20

Role of an expert

Answer 20

1. independent product of the expert uninfluenced by litigation
2. Independent assistance should be provided to the court by way of objective, unbiased opinion
3. state facts on which opinion is based
4. make it clear when question or issue is outside their expertise
5. if opinion was nto properly reached because of insufficient data - must state opinion is provisional
6. if after exchange of reports and expert changes their mind, view should be communicated to other party and the court
7. photographs, plans, surveys etc must be provided to other side at same time as exchange of the courts

Question 21

Instructing experts

Answer 21

Letter of instruction to expert is not privileged.

Court will only require inspection and disclosure if it considers the instructions as summarised in the expert report are inaccurate or incomplete

Question 22

Expert report

Answer 22

Must:
- be addressed to the court not the instructing party
- set out experts qualifications
- set out details on any material relied on
- set out instructions and facts given to expert
- make it clear which facts stated in the report are within the expert’s own knowledge
- explain tests
- summarise ranges of opinion and give reasons for their own opinion
- contain summary of conclusions reached by the expert
- statement expert understands their duty to court and complied with it
- statement of truth

Earlier drafts if submitted need to be disclosed but attract litigation privilege

Question 23

Exchange of expert evidence

Answer 23

Court will usually order an exchange.

Failure to exchange in accordance with the give directions means that the evidence cannot be used unless the court gives permission.

Question 24

What is a single joint expert?

Answer 24

• rather than each instructing its own expert, to save costs the parties can agree to appoint a single joint expert.
  Even if they do not, the court has power to only permit a single joint expert.

Pre-action protocols also encourage the use of a single joint expert where appropriate.

If parties cannot agree who should be the single

Question 25

What track is a single joint expert on?

Answer 25

Often ordered in: small claims, fast track, and intermediate track but less likely to be appropriate in complex multi-track claims.

Question 26

Questions by a party to experts

Answer 26

Once expert reports have been exchanged rules about asking expert questions (joint or other party):

• questions can only be put once
• generally only for purpose of clarifying report
• must be submitted to expert within 28 days
• copy must be sent to the other party
• no time limit for answer
• answers become part of the report

if no answer court can order the party cannot rely on that evidence or recover fees for expert from other party

Question 27

Discussion between experts

Answer 27

Court can order that experts meet so the experts can identify the issues in the case and reach an agreed opinion.

Common for court to exercise this power.

Court can specify the issues which the experts must discuss and direct they produce. a joint statement setting out issues on which they agree and disagree.

Agreements do not bind parties unless agree to be bound (but there may be cost consequences of refusing)

No one except experts attend discussion.

Question 28

If a party thinks an expert has stepped out of their expertise or is incompetent

Answer 28

Can argue that the:

• Agreement should not be accepted by the court
• Part should adduce further expert evidence

Question 29

Hot-tubbing

Answer 29

All the experts are giving evidence at once.

Question 30

Options when a party receives an unfavourable report from an expert instructed by that party or from a single joint expert

Answer 30

1. Put question to the expert
2. Seek advice from another expert advisor
   - if differs substantially, may seek permission but this is difficult and costly
   - if not given permission, can use the expert to assist in preparing questions for cross-examination
3. If no direction for the expert to give oral evidence, seek such a direction from the court

If wants different exert witness it must seek court’s permission, and second is usually only allowed on the condition that the first report be disclosed (prevent ‘expert shopping’)

Usually only permitted in exceptional cases.

If party decides not intending to rely on report after disclosure, the other party may still rely on it.

If unfavourable, THINK ABOUT SETTLING!

Question 31

What if experts report is not exchanged by the date set out in the court’s directions?

Answer 31

An expert’s report must be exchanged by the date set out in the court’s directions otherwise the evidence cannot be used without the court’s permission.

Question 32

Who sends confirmation of the date to file the expert report to the single joint expert?

Answer 32

An order confirming the date that the report of the expert shall be filed at court should come from the claimant.

Question 33

What if the other sides asks an absurd amount of questions of the expert?

Answer 33

The party who hired the expert should file a written request with the court for directions.