witness and expert evidence (week 7) Flashcards
what is the maximum amount of time that parties can agree an extension for serving witness statements without the need for the court?
up to 28 days
if an extension of time for witness statements has a subsequent effect on a key date - what should the parties do?
application made to the court for the extension to avoid the risk of the court not approving the agreement at trial
what happens if a party serves a witness statement late?
They should apply to the court for a relief from sanction that the witness may not be called to give evidence
the sanction is: that the witness statement isn’t allowed in evidence
what is a witness statement?
a written statement signed by a person which contains the evidence that person would be allowed to give orally
what is the general rule for a witness giving evidence not at trial (eg, at an interim application)?
any fact which needs to be proved by the evidence of witnesses other than for trial is to be proved by their evidence in writing
what are the 2 reasons why an opinion can be given as evidence?
expert evidence
perceived fact
does a statement of truth need to go with a witness statement?
yes a witness statement needs a statement of truth to go with it
if a person makes a false statement in a witness statement - what are the consequences?
can be held in contempt of court
how is a witness statement used at trial?
as their evidence in chief
can a witness statement be given by a company?
no, a witness statement is always given by a specific person so it cannot be given by a company or partnership
In what way is witness evidence for an interim hearing different to that for a trial?
an interim hearing the witness statement has an additional two brief paragraphs relating to the reason for the statement and the position taken in relation to the application.
what is an affidavit?
it is a written statement of evidence that is sworn before a person authorised to administer affidavits (use this instead of a statement of truth)
what is a person called who gives evidence via an affidavit?
a ‘deponent’
in what situations must an affidavit be used?
used in an application for a search order or a freezing injunction, and in any other situation where a rule, order or practice direction requires it
is hearsay evidence admissible in civil proceedings?
yes
if a party intends to rely on hearsay evidence at trial - what must they do?
must give notice to the other party that it intends to do so
what happens if a party gives hearsay evidence but dos not give notice when they should have?
evidence is still admissible but the weight the court attaches to it is likely to be less and the offending party may be penalised in costs.
what are the 4 possible options that a party has on receipt of notice of intention to rely on hearsay?
- request particulars of hearsay
- call for cross-examination
- challenge the weight of hearsay evidence
- attack credibility of an absent witness
what is the court’s duty in relation to expert evidence?
court has the duty to restrict expert evidence to that which is reasonably required to resolve the proceedings
what do parties need the court’s permission for in relation to expert evidence?
need permission to rely on the expert evidence in proceedings NOT to instruct an expert
when parties apply to the court for permission to have expert evidence what must they do? (2 things)
1) provide an estimate of the costs of the proposed expert evidence
2) identify the field in which expert evidence is required and, if practicable, the name of the proposed expert
how should expert evidence be given?
in written reports unless the court directs otherwise
what is hot-tubbing (expert evidence)?
where some or all of the evidence of experts from similar fields are given at the same time
how does the court try to stop ‘expert shopping’?
if a party seeks to adduce evidence form a second expert then they must disclose their first report from first expert.
what are the differences between a witness statement for an interim hearing and a witness statement for trial?
not usually cross examined - no live evidence
couple of additional paras in the interim (what it is in relation to and what you want from the court)
if the evidence is in a witness statement of a person who is to give oral evidence at trial is formal notice required for hearsay?
no formal notice is required because notice of the hearsay is deemed served when witness statements are served on the other party (no separate communication required)
