Witness, Expert and Opinion Evidence

Question 1

When does the exchange of evidence take place?

Answer 1

Between case management and trial. Parties engage in disclosure and inspection, exchange of witness statements and expert evidence.

Question 2

What is the general rule in relation to witness statements?

Answer 2

Evidence given by a witness must be given orally at trial, otherwise it might count as hearsay. A witness statement is signed by the witness and is usually used as their evidence in chief by reading it out at trial and witness simply confirms its contents.

Question 3

How can a witness statement be used?

Answer 3

• At trial: as evidence in chief to confirm the contents of the witness’ witness statement.
• In the proceedings: can only be used for the specific proceedings unless it is admitted in public trial or witness/court gives permission for it to be used for another purpose.
• Additions and Amplifications: witness can amplify or add details to witness statement in court with permission of court.

Question 4

What must the parties do with their witness statements?

Answer 4

Serve the witness statements on each other and file them at courts. The deadline for doing this will usually be determined by court directions at CMC.

• If that witness not attending court, notify other party of hearsay.

Question 5

Can the parties agree to extend the deadline set by the court for serving their witness statements?

Answer 5

Yes by up to 28 days provided that this does not put the hearing at risk.

• If the hearing is put at risk or the other party does not agree, can apply to the court under CPR 3.

Question 6

What is the sanction for failing to serve witness statements on time?

Answer 6

The party may not call the witness at trial without the permission of the court.

Question 7

How are witness statements used in interim applications?

Answer 7

Facts required to be proved by a witness at an interim hearing are required to be proved in writing. The court will rely solely on witness statements, often by the solicitor rather than the witness themselves.

Question 8

Is opinion evidence admissible?

Answer 8

In general, opinion evidence is not admissible unless it is to explain how a witness personally perceived something, i.e the car was driving fast, she was drunk.

Question 9

What are affidavits and when are they needed?

Answer 9

Affidavit is a written statement of evidence sworn before a person authorised to administer affidavits. The witness is called the deponent. Authenticated by a jurat.

Jurat = signed by all deponents, completed, signed by and sworn before a Commissioner for Oaths, Circuit / District Judge and person independent of their parties and reps. Must follow on from text and not be on separate page.

To support applications for search orders and freezing injunctions.

Question 10

What is hearsay? What is the general rule?

Answer 10

A statement made out of court (pictorial, oral or written) and being adduced in court to assert the truth of a statement or other fact.

General rule is that hearsay is admissible in civil proceedings but notice must be given to the other parties in certain proceedings.

Question 11

What is the procedure where hearsay is a witness statement?

Answer 11

• Where the witness is called to give oral evidence, service of the witness statement on other party = deemed notice.
• Where witness not called to give oral evience = must informally notify other parties of hearsay evidence being used and why witness absent.

Question 12

What is the procedure where hearsay evidence is introduced (which is not a witness statement)?

Answer 12

Must give formal evidence to the other party identifying the hearsay, stating intention to rely on hearsay and explain why witness not called.

Question 13

What are the consequences of failing to give notice of hearsay?

Answer 13

• Evidence admissible but court may attach less weight to it or impose cost penalties.
• pictures, sketches, models and photos / plans are not receivable at trial

Question 14

What are the 4 methods of responding to a hearsay notice?

Answer 14

1. Request particulars of hearsay
2. Challenge weight of hearsay
3. Attack credibility of absent witness (14 days of notice)
4. Call for cross-examination of witness (14 days of notice)

Question 15

What is the general rule for expert evidence?

Answer 15

Expert evidence can only be admitted with the permission of the court (usually given at CMC) and the courts retain a discretion to only admit as much expert evidence as is reasonably required to resolve the proceedings.

Small Claims: permission usually only for 1 expert on particular issue
Fast Track: 1 expert per party in max 2 fields.

Question 16

What are the duties of the expert and to whom are they owed?

Answer 16

= duty primarily an impartial one to the court, overriding the obligation to the party who instructed expert

• Evidence should be independent product of expert;
• Objective, unbiased opinion + never assuming role of advocate;
• State facts or assumptions on which opinion based + material facts which could point the other way
• Make it clear when issue or question falls outside their expertise
• If opinion not properly researched because of insufficient data, state this.
• If, after exchange of reports, expert changes their mind on material matter, should be communicated to other party and (if appropriate) the court.
• Photos, plans, surveys and other docs referred to in expert evidence must be provided to other side at same time as exchange of reports.

Question 17

Which documents are required for instructing and using an expert?

Answer 17

1. Letter of instruction (protected by litigation privilege unless reasonable grounds for believing instructions inaccurate or incomplete).
2. Written Report: produced and served usually, exchanged with other side otherwise cannot be used at trial without court permission. Protected by litigation privilege which is waived when served.

Question 18

When will a single joint expert be used?

Answer 18

The parties may agree to appoint a single joint expert and the court may give directions to this effect. This is unlikely to be appropriate in multi-track claims but will generally be used on the fast-track unless there is good reason not to.

1. SJE should be joined into all relevant correspondence
2. Parties can instruct the SJE separately but copy one another in
3. If parties cannot agree on which SJE to appoint, the court may select from list prepared by the parties or by some other method.

Question 19

What are the rules for discussions between experts?

Answer 19

Discussions are without prejudice unless parties agree to use them in court.

• Court may direct parties to reach agreement on specified thing;
• Not binding on parties unless parties agree to be bound
• Parties and legal reps do not attend the discussion unless authorised by court
• If expert acts incompetently, party can argue agreement should not be accepted by court.

Question 20

Can expert be called to give evidence in court?

Answer 20

• Court may grant permission to call expert to give oral evidence at trial
• For small claims and fast track = only when in interests of justice
• Court may direct evidence to be given in certain way, e.g issue-by-issue or hot-tubbing

Question 21

What options does a party have when it receives an unfavourable expert report?

Answer 21

• Seek different expert witness with court permission (though will probably be required to produce expert’s report)
• Cost sanctions
• Settlement
• Loss of credibility
• Expert who changes mind after meeting with other party does not have a good reason for change
• If one party decides not to rely on expert’s report, other party can