WITNESS EVIDENCE

Question 1

There are
two types of evidence:

Answer 1

*Direct—that is, oral evidence of a witness who perceived
the facts; and
*Circumstantial—that is, evidence that does not direct-
ly establish a fact but that allows the court to decide
whether a particular fact existed. This includes opinion
evidence, which is generally the preserve of an expert
witness.

Question 2

statement by witness

Answer 2

1. The general rule is that evidence at trial should be from
   witnesses who have provided a signed statement setting out
   their evidence.
2. The statement must have been endorsed with a statement of truth and served on the opponent on time in accordance with the court directions order.
3. The witness will
   then attend court to give evidence and can be questioned

Question 3

Effect of Failure to Serve Statement

Answer 3

If the witness statement is not served, a party cannot call that witness to give evidence unless the court gives permission

Question 4

Competency ofWitness

Answer 4

A witness must be competent to give evidence. A witness is
competent if they can be lawfully called to give evidence (a
person lacking the necessary mental capacity, for example,
would be unable to give evidence).

Question 5

Service of
Summons

Answer 5

A witness may be com-
pelled to give evidence by serving a witness summons on the witness. The court will issue a witness summons on request of a party and serve the summons on the witness at least seven days before the hearing. The witness is entitled to a sum of
money (known as conduct money) for travel and lost time,
including earnings lost on account of attending the trial.

Question 6

Use of Statement by Opponent

Answer 6

If a party decides not to call a witness whose statement has been served, the other party can refer to the statement,
which the court will treat as hearsay evidence

Question 7

FORMAT OFWITNESS STATEMENTS

Answer 7

Statement of Truth
Relationship to Party

Question 8

EXCHANGE OFWITNESS STATEMENTS

Answer 8

Under the standard directions, the parties must by a certain date exchange witness statements of those witnesses on
whose evidence they intend to rely at trial.

Question 9

WITNESS SUMMARIES

Answer 9

If it is not possible to obtain a statement before the date for
exchange in the directions order, a party may serve a witness summary. The witness summary should identify the witness
and summarise the factual issues that their evidence will cov-er. It is necessary to obtain permission of the court to serve a witness summary

Question 10

AFFIDAVITS

Answer 10

1. An afdavit is a written statement confrmed by oath or afr-
   mation, predominantly for use as evidence in court.
2. The diference
   between an afdavit and a normal witness statement is that,
   whilst a witness statement contains a statement of truth, an
   afdavit must be ‘sworn’, normally before a solicitor who will
   endorse to say that the maker had sworn before them that
   the contents were true.
3. In most cases, a witness statement
   will sufce, but certain types of application or process require an afdavit to support, for example, applications for freezing
   injunctions or search orders must be supported by afdavit.

Question 11

HEARSAY EVIDENCE

Answer 11

Hearsay evidence is “a statement made otherwise than by
a person while giving oral evidence in proceedings which
is tendered as evidence of matters stated”. In other words,
statements made outside of court.

Question 12

Hearsay evidence can be oral or in writing, but for evidence to be hearsay:

Answer 12

*It must have been made out of court; and
*Its purpose must be to prove the truth of what is being
stated.
It is important to appreciate that all witness statements are, at the point the witness signs the statement, hearsay. However,
if, as is generally the case, the witness comes to court to give evidence, their witness statement (plus their answers to the
other side’s cross-examination) is treated as if they had spo-
ken it in court and hence ceases to be hearsay. The position
is, however, diferent if the witness is unable to attend court.

Question 13

evidence in chief

Answer 13

1. The claimant’s witnesses will give their evidence frst. Each
   witness will take the stand and frst swear an oath or afrma-
   tion that their evidence is true. They will then be asked by the solicitor or barrister representing the claimant to confrm that
   it is their signature on the witness statement and that their
   statement is correct. Assuming they say yes, the statement
   will then stand as their evidence and cease to be hearsay.
   This is technically known as their evidence in chief.
2. Exam Tip
   Be clear as to the diference between evidence in chief
   and evidence given in cross-examination. Evidence
   in chief is actively presented by the party, whereas
   cross-examination occurs when the party asks his oppo-
   nent’s witnesses questions.

Question 14

Evidence ofWitnesses Who Do Not Attend Court

Answer 14

1. If a witness is unable to attend but a party wishes the court
   to consider the signed statement of the witness at the trial, the court will treat this as hearsay evidence. A judge will not place as much weight on hearsay evidence.
2. In making their judgment, the trial judge will indicate the
   weight that they have attached to any hearsay evidence.

Question 15

Process for Relying on Hearsay Evidence

Answer 15

1. A party wishing to rely on hearsay evidence must serve a
   notice on their opponent.
   2.A party served with a hearsay notice may seek to call the wit-ness at trial (if the witness’s whereabouts are known) or seek
   to attack the witness’s credibility at trial. To do so, the party
   must act within 14 days of receiving the hearsay notice (that
   is, make an application to call the witness to court for the trial within 14 days of receiving the hearsay notice or, within 14
   days of receiving the hearsay notice, serve a notice of intent
   to attack the credibility of the hearsay by establishing that the witness is biased, untrustworthy, or unreliable).

.

Question 16

Problem Witnesses

Answer 16

if the witness proves to be more than unfavourable and shows a signifcant lack of cooperation to tell the truth on behalf of the party who called them or gives their evidence in a way which is entirely incon-sistent with their witness statement, it is possible for the party to ask the judge to declare them a ‘hostile witness’. If the
judge agrees, the witness can then be cross-examined on
the facts of the case, for example, to prove that the witness
has made an inconsistent statement in the past.

Question 17

Similar Fact Evidence

Answer 17

A party may rely on** previous incidents or conduct** as
evidence of similar conduct in the case in question. Suchevidence is admissible, so long as it is relevant. For exam-ple, a claimant in a road trafc accident case in which they contend the defendant disobeyed a trafc light may wish
to show that the defendant has nine points on their driving
record for three separate ofences of failing to comply with a
trafc light signal all added in the past year.

Question 18

Notice to Admit Facts

Answer 18

If a party believes that certain facts are capable of agreement and admission, so as not to waste court time, they may serve a Notice to Admit Facts on their opponent no later than 21
days before trial. Facts admitted are deemed established
and then need not be proved. If a Notice to Admit Facts was
served, the facts were not admitted, but then were proved
at trial, the court may order the party who refused to admit
to pay the costs associated with proving the facts at trial,
regardless of the case outcome.

Question 19

Notice to Admit or Produce Documents
(Notice to Prove)

Answer 19

1. If a party believes a document produced by an opponent is
   not authentic, the party can serve a notice to prove the docu-ment at trial.
2. The notice must specify the document being chal-lenged and must be served by the last day available for wit-ness statement exchange or within seven days of disclosure
   of the document (whichever is later).
3. If the recipient proves
   the authenticity of the document at the hearing, the court may make a costs order against the party who served the notice.

Question 20

Letter of Request

Answer 20

A letter of request is used when a court in one jurisdiction
asks the court in another jurisdiction to take evidence on its behalf, either orally or in writing. They are occasionally
utilised in international commercial cases, for example, where there may be an important witness residing within another
jurisdiction who is unwilling to provide a statement.

Question 21

Certain types of evidence are inadmissible. As such, a party cannot use this evidence to support their claim. Examples
are:

Answer 21

*Opinion evidence (except from experts);
*Evidence that is privileged;
*Communications that are, by their nature, ‘without preju-
dice’, including formal ofers to settle the case;
*Evidence protected by public interest immunity; and
*Any evidence that is irrelevant.

Question 22

Burden and Standard of Proof

Answer 22

In a civil dispute, the claimant has the burden of proving their case, and the standard of proof required is **‘on the balance
of probabilities’, **that is, ‘more likely than not’.

Exam Tip
Negligence is a common claim in disputes. In a negli-
gence claim, the claimant must prove the three com-
ponents of duty of care, breach of duty, and causation. Therefore, always remember that to be successful in a claim for negligence, a claimant must establish each of the three components ‘on the balance of probabilities’.