witness and expert evidence (week 7)

Question 1

what is the maximum amount of time that parties can agree an extension for serving witness statements without the need for the court?

Answer 1

up to 28 days

Question 2

if an extension of time for witness statements has a subsequent effect on a key date - what should the parties do?

Answer 2

application made to the court for the extension to avoid the risk of the court not approving the agreement at trial

Question 3

what happens if a party serves a witness statement late?

Answer 3

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

Question 4

what is a witness statement?

Answer 4

a written statement signed by a person which contains the evidence that person would be allowed to give orally

Question 5

what is the general rule for a witness giving evidence not at trial (eg, at an interim application)?

Answer 5

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

Question 6

what are the 2 reasons why an opinion can be given as evidence?

Answer 6

expert evidence
perceived fact

Question 7

does a statement of truth need to go with a witness statement?

Answer 7

yes a witness statement needs a statement of truth to go with it

Question 8

if a person makes a false statement in a witness statement - what are the consequences?

Answer 8

can be held in contempt of court

Question 9

how is a witness statement used at trial?

Answer 9

as their evidence in chief

Question 10

can a witness statement be given by a company?

Answer 10

no, a witness statement is always given by a specific person so it cannot be given by a company or partnership

Question 11

In what way is witness evidence for an interim hearing different to that for a trial?

Answer 11

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.

Question 12

what is an affidavit?

Answer 12

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)

Question 13

what is a person called who gives evidence via an affidavit?

Answer 13

a ‘deponent’

Question 14

in what situations must an affidavit be used?

Answer 14

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

Question 15

is hearsay evidence admissible in civil proceedings?

Answer 15

yes

Question 16

if a party intends to rely on hearsay evidence at trial - what must they do?

Answer 16

must give notice to the other party that it intends to do so

Question 17

what happens if a party gives hearsay evidence but dos not give notice when they should have?

Answer 17

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.

Question 18

what are the 4 possible options that a party has on receipt of notice of intention to rely on hearsay?

Answer 18

1. request particulars of hearsay
2. call for cross-examination
3. challenge the weight of hearsay evidence
4. attack credibility of an absent witness

Question 19

what is the court’s duty in relation to expert evidence?

Answer 19

court has the duty to restrict expert evidence to that which is reasonably required to resolve the proceedings

Question 20

what do parties need the court’s permission for in relation to expert evidence?

Answer 20

need permission to rely on the expert evidence in proceedings NOT to instruct an expert

Question 21

when parties apply to the court for permission to have expert evidence what must they do? (2 things)

Answer 21

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

Question 22

how should expert evidence be given?

Answer 22

in written reports unless the court directs otherwise

Question 23

what is hot-tubbing (expert evidence)?

Answer 23

where some or all of the evidence of experts from similar fields are given at the same time

Question 24

how does the court try to stop ‘expert shopping’?

Answer 24

if a party seeks to adduce evidence form a second expert then they must disclose their first report from first expert.

Question 25

what are the differences between a witness statement for an interim hearing and a witness statement for trial?

Answer 25

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)