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 directly 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

3

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

3

Service of
Summons

Answer 5

1. A witness may be compelled to give evidence by serving a witness summons on the witness.
2. 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.
3. 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

3

WITNESS SUMMARIES

Answer 9

1. 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.
2. The witness summary should identify the witness and summarise the factual issues that their evidence will cov-er.
3. It is necessary to obtain permission of the court to serve a witness summary

Question 10

3

AFFIDAVITS

Answer 10

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

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 spoken it in court and hence ceases to be hearsay. The position is, however, different if the witness is unable to attend court.

Question 13

6

evidence in chief

Answer 13

1. The claimant’s witnesses will give their evidence first.
2. Each witness will take the stand and first swear an oath or affirmation that their evidence is true.
3. They will then be asked by the solicitor or barrister representing the claimant to confirm that it is their signature on the witness statement and that their statement is correct.
4. 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.

Exam Tip
1. Be clear as to the difference between evidence in chief and evidence given in cross-examination.
2. Evidence in chief is actively presented by the party, whereas cross-examination occurs when the party asks his opponent’s witnesses questions.

Question 14

2

Evidence of Witnesses 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

3

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.
3. 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

2

Problem Witnesses

Answer 16

1. 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’**.
2. 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

1. A party may rely on** previous incidents or conduct** as evidence of similar conduct in the case in question. Such evidence is admissible, so long as it is relevant. For example, a claimant in a road traffoc accident case in which they contend the defendant disobeyed a traffic light may wish to show that the defendant has nine points on their drivingrecord for three separate offences of failing to comply with atraffic light signal all added in the past year.

Question 18

3

Notice to Admit Facts

Answer 18

1. 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.
2. Facts admitted are deemed established and then need not be proved.
3. 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

3

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

2

Letter of Request

Answer 20

1. A letter of request is used when a court in one jurisdic**tion asks the court in **another jurisdiction to take evidence on its behalf, either orally or in writing.
2. 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

5

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 prejudice’, including formal offers 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 negligence claim, the claimant must prove the three components 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’.