Witness evidence in civil trials

Question 1

What must a party do if it wishes to call a witness to give evidence at a civil trial?

Answer 1

The party must serve a witness statement on the other parties setting out all the facts which that witness would be allowed to give orally at trial.

The statement should only include admissible and relevant material.

Question 2

What CPR provision deals with witness statements?

Answer 2

CPR Part 32.

Question 3

What happens if a witness statement is not served?

Answer 3

The witness will only be allowed to speak at trial with the court’s permission (rare).

Question 4

What is a witness summary?

Answer 4

A witness summary is a document that sets out:
(a) the witness’s name and address
(b) the evidence the witness can provide, if it is known; or if not
(c) the matters on which the witness would be questioned at trial, namely the relevant disputed issues.

Question 5

When will a witness summary be used?

Answer 5

Where it is exceptionally difficult to obtain a witness statement.

The party wishing to use that witness’s evidence can apply to the court without notice for an order to serve a written witness summary.

Question 6

What is the required form and content of a witness statement?

Answer 6

(a) Statement should be headed with the title of the proceedings and details such as name of witness, number of the statement and the date in the top right hand corner.

(b) Opening paragraph should contain witness’s address, occupation or description, whether statement is made as part of their employment/business and, if so, name of the business and whether they are a party to the proceedings.

(c) Paragraphs must be numbered with all numbers, including dates, being expressed as figures and not words.

(d) Statement should normally follow chronological sequence of the events.

(e) Function of the witness statement is to set out in writing the evidence that the individual wants to provide on behalf of the party that called them.

Historically given orally at trial – to save time, witness statement usually replaces this now.

(f) Consequently, statement should be written in first person and expressed in witness’s own words as far as possible.

(g) Witness must indicate which statements are made from their personal knowledge and which are based on information/belief, naming the source if appropriate.

The process by which the witness statement was prepared must be included – e.g. face to face or over the telephone with a party’s solicitor.

(h) Any documents attached are formally exhibited.

(i) Must be verified by a statement of truth – witness statement cannot be signed by a legal representative.

Question 7

When will the court give directions for exchange of witness statements?

Answer 7

Once the case has been allocated to a track.

Question 8

Can a witness add to their witness statement at the trial?

Answer 8

General rule - no, unless the court gives permission.

Court will only give permission if the judge is satisfied that there is a good reason why the evidence was not dealt with in the statement itself.

Question 9

What CPR provision deals with expert evidence?

Answer 9

CPR Part 35.

Question 10

Do parties have an unlimited right to use expert evidence in civil trials?

Answer 10

No. The court will control how much expert evidence is allowed to be adduced at trial.

No party may call an expert without obtaining permission.

Question 11

Who does the expert owe their duties to?

Answer 11

The expert owes a dual duty:
(a) to the court; and
(b) to the party instructing them.

However, the expert’s overriding duty is to assist the court by providing objective, unbiased opinions on matters within their own expertise.

Question 12

What is the procedure for using expert evidence where separate experts are instructed?

Answer 12

(a) Exchange: a deadline will be imposed for exchange of the experts’ reports.

(b) Questions: each party may, within 28 days, put written questions to the expert for clarification of their report.

The expert’s answers are treated as part of the report.

(c) Discussion: the court may order a without prejudice discussion between the experts, usually in the absence of the parties or their legal representatives, and the contents will not be referred to at trial unless the parties agree.

The purpose of the discussion is not to settle the case but to narrow down the issues and to identify:

(i) the extent of any agreement between them;

(ii) the points of and short reasons for any disagreement;

(d) Written joint statement: following the discussion, a written joint statement must be prepared for the court and signed by the experts stating the issues on which they agree and those on which they disagree with a summary of the reasons.

Copies should be provided to the parties.

(e) Oral evidence: the judge will decide whether the expert may give oral evidence at trial.

Although there is a presumption that the court will rely upon written reports, it is common on the multi-track for experts to be called to give evidence.

Question 13

What is the prescribed form and content of an expert’s report?

Answer 13

An expert’s report must:

(a) be addressed to the court;

(b) give details of the expert’s qualifications;

(c) give details of any literature or other material that the expert has relied on;

(d) contain a statement setting out the substance of all facts and instructions;

(e) say who carried out any examinations, measurements, tests or experiments, their qualifications and whether the expert supervised;

(f) where there is a range of opinion, summarise this and give reasons for the expert’s own opinion;

(g) include a summary of the conclusions reached; and

(h) contain a statement that the expert understands their duty to the court and has complied with this, and is aware of the requirements of Part 35 and related guidance.

The statement must also be verified by a statement of truth.

Question 14

What is the effect of an expert’s failure to comply with Part 35?

Answer 14

If the breach is serious, the party may not be allowed to rely on that expert’s evidence, but in most cases, the judge will simply take account of the breach when deciding what weight should be given to the expert evidence.

Question 15

Is hearsay evidence admissible?

Answer 15

Yes.

To be admissible, the hearsay statement must be a relevant fact or an admissible opinion.

Question 16

What should a party do if it intends to rely on hearsay evidence a trial?

Answer 16

It should serve a hearsay notice at the same time as it serves the witness statement.

The hearsay notice will set out that the witness is not being called to give oral evidence, and explain the reason why.

This gives the other party advance warning, since they will not be able to cross-examine the witness.

Question 17

What is the effect of failing to comply with notice requirements?

Answer 17

The hearsay evidence is still admissible, but the failure may be taken into account when assessing the weight to be given to it, or when making a costs order at the end of the trial.

Question 18

What must a judge have regard to in all the circumstances under s 4 CEA 1995 when assessing how much weight to give to hearsay evidence?

Answer 18

(a) Whether it would have been reasonable and practicable for the party adducing the evidence to have called the person who made the original statement as a witness.

Only if the reason is a credible one, such as the person being dead or abroad and not contactable, is the statement likely be given some weight; otherwise, why not call the person to give oral evidence?

(b) Whether the original statement was made contemporaneously with the events in question, so that the facts referred to in it are fresh in the memory of the person making it.

A note made of a car registration number immediately after the car drives off will generally be more reliable than one made the next day, week or month.

(c) Whether the evidence involves multiple hearsay as there is always the danger of mishearing, exaggeration and general inaccuracy through repetition.

(d) Whether any person involved had any motive to conceal or misrepresent matters, for example an employee who makes the statement with a view to pleasing their employer.

(e) Whether the original statement was edited, or was made in collaboration with someone else, as this may suggest collusion, for instance.

(f) Whether the circumstances suggest an attempt to prevent proper evaluation of the weight of the evidence, perhaps because notice was given so late that the other party did not have a fair opportunity to respond to it.