Witness and expert evidence MCQs Flashcards
Tammy witnesses a road traffic accident and has been asked by the claimant’s solicitor to give a formal witness statement for the purposes of the fast track claim. The accident involved a lorry driven by the defendant.
Which one of the following statements is correct in respect of the use of Tammy’s witness statement?
If Tammy’s witness statement is served but she is neither called to give evidence at trial or her statement put in as hearsay the other side may put her statement in evidence as hearsay.
If Tammy’s evidence was required for a interim payment application hearing, her statement would be relied upon and she could not be called for cross examination on its contents.
Tammy’s statement stands as her evidence in chief at trial but Tammy can amplify her statement without permission of the court if new matters have arisen since her statement was served.
If Tammy’s witness statement is served she must be called to give oral evidence at trial unless the court orders otherwise.
If Tammy’s witness statement is served but she is neither called to give evidence at trial or her statement put in as hearsay the other side may put her statement in evidence as hearsay.
Rule 32.5(5) would allow the other side to put the statement in as hearsay if they wanted to rely on it. Note that the other side would have to put the whole statement in as hearsay, they could not rely on just part of it. Also, the court retains a discretion to exclude the evidence. – see para 32.5.3 commentary
Tammy witnessed a road traffic accident. She has made and signed a witness statement for the purposes of the claimant’s fast track claim. Tammy is due to have a serious operation on the date fixed for the trial and will therefore be unable to attend. The claimant’s solicitor intends to serve Tammy’s witness statement and wishes to produce her witness statement at trial without calling her.
Which one of the following statements is correct in relation to the admissibility of Tammy’s evidence in these circumstances ?
Tammy’s witness statement will not be admissible without the permission of the court unless a notice of intention to rely on hearsay evidence is served.
Tammy’s witness statement is not admissible on its own. She must attend the trial to give direct oral evidence.
Tammy’s witness statement is admissible and notice of intention to rely on hearsay evidence must be served 14 days before the trial.
Tammy’s witness statement is admissible without calling her but the other side can give notice that they intend to call evidence to attack to her credibility .
Tammy’s witness statement is admissible without calling her but the other side can give notice that they intend to call evidence to attack to her credibility .
See S.1 CEA 1995 and CPR 33.5 . The statement would be hearsay but is admissible. Note that notice of intention to attack credibility would have to be given not more than 14 days after the hearsay notice was served.
You act for the claimant in relation to a breach of contract claim allocated to the multi track. The case turns on witness evidence and there are no issues requiring expert evidence. The case management directions order provided that witness statements be served by 30 May . It is now 18 June and the defendant has failed to serve any witness statements even though the claimant is aware that the defendant intends to rely on two key witnesses. The claimant has heard the defendant’s solicitor has been very ill. The claimant has tried to make contact on numerous occasions and has warned that application for sanction will be made if there is no response within 7 days. There has been no response. A trial is listed for late August.
What would be the best advice to give the claimant on what steps, if any, to take in these circumstances ?
The claimant should apply to the court for an order striking out the defendant’s defence due to failure to comply with a rule and court order.
There is nothing the claimant can or should do . The claimant must wait for the defendant to apply for relief from sanctions .
There is nothing yet that the claimant can do because the court would expect the claimant automatically to grant an extension of time of 28 days to the defendant so the defendant has until 28 June.
The claimant should apply to the court for a conditional order in terms that unless statements are served within 2 weeks of the order the defence is struck out.
The claimant should apply to the court for a conditional order in terms that unless statements are served within 2 weeks of the order the defence is struck out.
This is the best advice. Failure to comply with a case management direction is breach for which a sanction can be imposed. Any sanction should be sought without delay (as delay could further prejudice the final hearing which is very soon)– see PD 29 para 7.2 . Here the claimant is being proactive and acting in line with the overriding objective in forcing the defendant’s hand on the issue and proportionate in the sanction sought. It is unlikely that the court would consider immediate strike out of the defence a proportionate step – see commentary at para 3.4.1 and 3.4.5. However, It is also likely in terms of what is known that applying the Denton factors if relief from sanctions were sought now or soon by the defendant it would be granted. The court will consider the Denton factors in determining whether to grant the sanction sought or an alternative sanction.
The parties in a multi track personal injury case have each been given permission to adduce expert evidence from an orthopaedic surgeon. Doctor Root is instructed for the claimant and Dr, Sahota for the defendant .
Which one of the following statements is correct in relation to the expert evidence in the case?
The court does not have power to require either expert to disclose or be cross examined on the instructions given to them by their solicitors as these are privileged.
If the claimant fails to disclose Dr Root’s report to the defendant , his report cannot be used at trial in any circumstances.
The usual rule is that both experts will be required to attend the hearing to give oral evidence unless their evidence has been agreed.
If the parties also wish to put in the evidence of a psychologist the court may direct that only the evidence of a single joint expert may be given.
If the parties also wish to put in the evidence of a psychologist the court may direct that only the evidence of a single joint expert may be given.
See CPR R35.7(1) – the court can order this and will also consider PD35 para 7 in making this decision.
Cavendish brought a claim against Froome and Wiggins. The claim related to a large scale construction project, the designs for which were extremely complicated. Each party had permission from the court to rely on their own expert’s report. These reports were exchanged in accordance with the directions handed down by the court. Having had sight of Froome’s expert’s report, Cavendish settled proceedings against Froome but continued proceedings against Wiggins.
Cavendish now wishes to rely on Froome’s expert’s report in the trial of its action against Wiggins. Which of the following is the best advice to give to Cavendish at this stage?
Cavendish should make an application to the court seeking permission to rely on Froome’s expert’s report at trial.
Cavendish can rely on Froome’s expert’s report without seeking the permission of the court but should advise Wiggins that he intends to rely on Froome’s expert’s report and for what purpose.
Cavendish is not able to rely on Froome’s expert’s report: a party cannot rely on an expert report which has been compiled by another party’s expert.
Cavendish should write to Wiggins’ solicitors, asking them for permission to use Froome’s expert’s report and setting out that Cavendish intends to rely on Froome’s expert reports for a specific, named purpose.
Cavendish can rely on Froome’s expert’s report without seeking the permission of the court but should advise Wiggins that he intends to rely on Froome’s expert’s report and for what purpose.
CPR 35.11 allows any party to rely on an expert’s report at trial, where that expert’s report has been disclosed and it does not matter that the party who disclosed the expert’s report has ceased to be a party to proceedings. .Additionally ,see commentary at paragraph 35.11.1 - there is no need for Cavendish to obtain permission before relying on Froome’s expert’s report but he should tell Wiggins of this intention and the purpose for whichhe intends to rely on it.
You act for the claimant Daniel Bates in a personal injury claim arising from a collision with the claimant’s vehicle and a lorry driven by the defendant, Mitchell Lord. The claim is defended and has been allocated to the multi-track.
The key allegations against the defendant are that he was driving too fast and his brakes were not in proper working order. Disclosure and exchange of witness statements and expert evidence has taken place in accordance with case management directions . The trial is due to take place in four months’ time.
Mikaela is a witness to the accident who stopped at the scene. Mikaela’s statement was signed nine months after the accident, however its contents are taken in full and unedited from a statement made by Mikaela to the police at the time of the accident for the purposes of the police accident report. In the statement Mikaela reports that she overheard a mobile telephone conversation at the scene during which the defendant told his wife that ‘It’s my fault , I was driving fast, I saw him but didn’t brake fast enough. I think the brakes might be faulty’.
Due to ongoing serious illness and hospitalisation, Mikaela will be unable to attend the trial and her served witness statement is being relied upon as hearsay. Proper notice has been given.
You are advising the claimant in conference on the evidence and preparations for trial. Which of the following would you advise to be most likely reason the court may reduce the weight to be attached to Mikaela’s evidence?
That the circumstances in which the evidence was adduced as hearsay suggest an attempt to prevent proper evaluation if its weight.
That her statement involves multiple hearsay.
That her statement was not made contemporaneously with the accident and was an edited account.
That it would have been reasonable and practicable to call Mikaela
That her statement involves multiple hearsay.
This is the most likely reason for the court to draw an inference that the evidence is likely to less reliable than direct oral evidence. See S. 4 Civil Evidence Act 1995 as to the factors the court will take into account when evaluating the weight of hearsay evidence. This reported speech in Mikaela’s statement is multiple (second hand) hearsay given that the statement itself is hearsay and therefore less likely to be reliable than direct oral evidence.
It is not reasonable and practicable to call Mikaela to give evidence and hearsay notice has been given. There is no suggestion therefore that evidence has been presented so as to prevent proper evaluation of its weight. The evidence was contemporaneous to the occurrence and is not an edited account.
During the conference you turn to consider the expert evidence. The claimant suffered significant injury to his dominant right arm and hand. Both parties have been given permission to obtain a report from their own orthopaedic surgeon in relation to the injuries, recovery time and prognosis for the claimant to regain full function. The claimant’s witness is Mr Haines and the defendant’s Mr Harris.
Elements of the evidence are agreed but the experts disagree on the period for rehabilitation, residual deformity and elements of loss of amenity. The experts are due to meet as directed by the court next week.
Which of the following is the correct advice to give the claimant in relation to the conduct of the meeting and the experts discussions ?
Any agreement reached by the experts will be binding on the parties and can be referred to at trial.
The parties’ legal representatives must attend the experts meeting but should not intervene in the discussion except to answer a question put to them or advise on the law.
Before the meeting the parties must discuss if an agenda is necessary and if so agree one which helps the experts to focus on the issues which need to be discussed.
The experts will need the authority of those instructing them before they sign a joint statement for filing at court setting out the issues on which they agree and disagree.
Before the meeting the parties must discuss if an agenda is necessary and if so agree one which helps the experts to focus on the issues which need to be discussed.
This is a requirement before a meeting takes place. See PD 35 para 9.3
[facts from previous question should you wish to refer back: The final part of the conference is a discussion about settlement . You advise that the case on liability is very strong and estimate that the claimant will recover in the range of £70,000 to £125,000 in damages. The most uncertain part of the claim relates to his future loss of earnings. The defendant has not made any offers. The claimant has already made an offer to settle in the sum of £110,000, which you advise is very sensible. The relevant period of 21 days has expired and the offer has not been accepted. There are no conduct issues in relation to the way the proceedings have been pursued or contested]
The claimant’s offer is not accepted by the defendant. 14 days before trial the defendant makes a valid Part 36 offer of £90,000. On your advice the claimant does not accept the offer and the case goes to trial. The claimant has not withdrawn or changed their own offer.
At trial the claimant is awarded £105,000 , which includes interest after the end of the relevant period of £2,000.
Assuming there are no conduct issues what is the correct advice in relation to the most likely costs order in these circumstances ?
Because Part 36 offers cannot be made less than 21 days before trial the defendant’s offer has no effect, so costs are entirely in the discretion of the court. The defendant is likely to be ordered to pay the claimant’s costs on the standard basis.
In these circumstances Part 36 has no effect so costs are entirely in the discretion of the court. The defendant is likely to be ordered to pay the claimant’s costs on the standard basis
The defendant will pay the claimant’s costs up to the end of the relevant period on the standard basis. Costs after this date will be assessed on the indemnity basis, the claimant will also be entitled to interest on damages and interest on costs of up to 10% above base rate for this period and an additional amount of 10% of the total damages awarded.
As the judgment was not at least as advantageous as the claimant’s own offer, the claimant will recover his costs to the end of the relevant period but will be ordered to pay the defendant’s costs and interest on costs from the end of the relevant period.
In these circumstances Part 36 has no effect so costs are entirely in the discretion of the court. The defendant is likely to be ordered to pay the claimant’s costs on the standard basis
Neither the claimant’s offer to the defendant or the defendant’s offer to the claimant triggers a Part 36 consequence - see CPR 36.17(1). The claimant has not obtained judgment at least as advantageous as his own offer, neither has the claimant failed to get judgment more advantageous than the defendant’s offer. In these circumstances CPR 44.2 applies and the general rule would be that the defendant would pay the claimant’s costs on the standard basis.
The final part of the conference is a discussion about settlement . You advise that the case on liability is very strong and estimate that the claimant will recover in the range of £70,000 to £125,000 in damages. The most uncertain part of the claim relates to his future loss of earnings. The defendant has not made any offers. The claimant has already made an offer to settle in the sum of £110,000, which you advise is very sensible. The relevant period of 21 days has expired and the offer has not been accepted. There are no conduct issues in relation to the way the proceedings have been pursued or contested.
Which of the following is correct in relation to the costs consequences if the offer was accepted outside the relevant period and the parties do not agree the costs?
The defendant will be ordered to pay the claimants costs on the standard basis up to the date of acceptance of the offer unless such order would be unjust.
The defendant will be ordered to pay the claimants costs up to the end of the relevant period on the standard basis and costs on the indemnity basis from the end of the relevant period to the date of acceptance of the offer unless such order would be unjust.
The defendant will be ordered to pay the claimants costs on the standard basis up to the date of acceptance of the offer and an additional amount of £11,000 unless such order would be unjust.
The defendant will be ordered to pay the claimants costs up to the end of the relevant period and the claimant will pay the defendant’s costs from the end of the relevant period to the date of acceptance of the offer unless such order would be unjust.
The defendant will be ordered to pay the claimants costs on the standard basis up to the date of acceptance of the offer unless such order would be unjust.
This is the most likely order. Here the claimant is the offeror and the defendant the offeree. As the parties cannot agree costs liability , unless such order is unjust the claimant will be awarded costs up to the date on which the relevant period expired and in addition the offeree ( the defendant) will be ordered to pay the offeror’s ( claimant’s) costs from the end of the relevant period until the date of acceptance. – see CPR 36.13(4)(b) and (5). The net effect of this is that the defendant pays the claimants costs up to the date of acceptance. This would be on the standard basis as the usual basis for assessing costs – see commentary at 36.13.3.
Question 1
A lawyer issues proceedings on behalf of their client (a man) against a company for breach
of contract. The lawyer drafts the client’s witness statement and writes to him enclosing it.
The client asks for information about the process – specifically what formalities are required
and what may be included in the content.
Which of the following should be omitted from the letter of advice to the client?
A The witness statement must comply with the formalities required by the CPR and should
include a statement of truth.
B The statement should, so far as possible, be expressed in the man’s own words.
C The man can only include evidence that he would be allowed to give orally so
irrelevant and inadmissible evidence must be excluded.
D The man may use his witness statement to argue his case and to make observations
about the evidence of other witnesses.
E The man must indicate which statements are made from his own knowledge and
provide the source of any information which is not.
Answer
Option D should be omitted. The man should only give factual evidence and it is not the
function of the witness statement to argue his case or to make observations about the
evidence of other witnesses. Option A correctly identifies that the witness statement must
comply with CPR Part 32. Option B correctly provides that the statement will stand as the
man’s evidence- in- chief; and option C correctly states that the witness statement is subject
to the usual rules of evidence. Option E is another requirement of the CPR.
Question 2
A woman purchases a car from a local garage after the salesman assures her that the
vehicle has never been involved in an accident (statement 1). When she drives the car, it
bursts into flames and, on inspection by an expert, it becomes apparent that the vehicle
had been completely rebuilt after a collision two years previously. The woman sues the
company that sold her the car and includes in her witness statement evidence of the
comment that was made to her by the salesman (statement 1) and also what her friend
told her afterwards, namely that the company was ‘dodgy’ (untrustworthy) – statement 2.
Which of the following correctly describes the evidence the woman may give in her
witness statement?
A Both statements are admissible hearsay.
B Statement 1 is not hearsay but is admissible as it is relevant to an issue in dispute.
Statement 2 is hearsay but it is inadmissible because it is opinion evidence.
C Both statements are inadmissible opinion evidence.
D Statement 1 is not hearsay but is admissible as it is relevant to an issue in dispute.
Statement 2 is admissible hearsay.
E Statement 1 is admissible hearsay and statement 2 is inadmissible opinion evidence.
Answer
Option B is correct.
Statement 1 is admissible evidence: it is relevant to the issue of misrepresentation as the
woman is alleging that the statement was false and that she relied upon it to purchase the
car. However, it is not hearsay. Although it is an oral statement made by the salesman outside
court (at the garage), which the woman repeats in court, she is repeating it to prove it was
said and not that it is true.
Statement 2 is hearsay: it is an oral statement made by her friend outside court that the
woman is repeating to prove its truth – that the company is untrustworthy. However, the
evidence is inadmissible because it is opinion and not based on facts personally perceived by
the woman’s friend (just as the friend could not give this evidence herself to the court, so the
woman cannot repeat it to the court).
Question 3
A company wishes to call evidence from experts in support of their claim for breach of
contract. The case involves a dispute about the installation of an online booking system for
the company’s national and international hotel chain. There have been numerous problems
with the system including rooms being double booked and customers’ details being lost.
The defendant argues that this is due to the claimant’s employees’ failure to operate the
system properly rather than the highly technical defects alleged by the company. The
company is claiming £125,000 being the cost of a replacement system and £1,395,250 as
damages for loss of profits.
Which of the following best describes the approach that the court will take to
expert evidence?
A Each party will be granted permission to instruct experts on the issues of liability and
quantum.
B The experts will be ordered to meet to identify the areas of agreement and
disagreement and the judge will be made aware of these discussions.
C Although it is preferable for the expert’s evidence to be included in the form of a
report, a written statement is also acceptable.
D The duty of the expert is primarily to the party instructing them but they must bear in
mind their additional duty to the court.
E The court will order that the issues are to be decided on the basis of the written
reports alone.
Answer
Option A is correct. Because of the complexity of the issues and the amounts in dispute, this
case is not suitable for a single joint expert and each party would be granted permission to
instruct separate experts on both liability and quantum.
Option B is wrong in that, whilst there would be a discussion between the experts (whether
face to face or by telephone or video conference), this is without prejudice and so the judge
would not be made aware of what was discussed. Option C is wrong as, to be admissible, the
expert’s evidence must be in the form of a report that complies with Part 35. The overriding
duty of the expert is to the court – hence, option D is wrong – although the expert also owes
a duty to the party instructing them to exercise reasonable care and skill. Option E is wrong
because, although a court could order that the issues be decided on the basis of written
reports only, this is unlikely in a dispute over technical matters involving the suitability and
operation of an online booking system and the claim for damages of over £1 million is likely
to be hotly contested.
