Witness Statements and Evidence Flashcards
Following the claimant’s application, the court made an order that, unless the defendant served his witness statements within 21 days, the defence would be struck out. The defendant’s solicitor knew that he would struggle to meet the deadline and, seven days after the court order, telephoned the claimant’s solicitor who agreed to an additional 14 days for service of the amended defence. There was no further correspondence on this issue. No hearing is currently listed for the claim.
Is the agreement made between the parties’ solicitors in accordance with the procedural rules?
No, as the extension must be made by written agreement.
CANNOT BE OVER PHONE
Although it is true that the parties may extend time (see CPR 2.11), such agreement must be in line with the provisions of CPR 3.8(3) and (4).
It is four weeks before the trial in a claim arising in negligence. Witness statements were exchanged eight weeks ago. The defendant’s solicitors notify the claimant’s solicitors in writing that the defendant will no longer be relying upon a witness, whose statement was exchanged, as the witness has left their employment and now works for a competitor. The claimant’s solicitors wish to rely on the witness’s statement which they believe to be helpful to the claim.
Which of the following is correct as to whether and how the witness statement may be put in evidence by the claimant?
The claimant may put in the statement as evidence without the permission of the court as it is hearsay evidence.
CPR 32.5(5) makes it clear that a party is entitled to rely on the evidence without the court’s permission.
Although there is a general rule that witness statements may only be used for purpose of the proceedings in which it is served there is an exception where the witness statement has been put in evidence at a hearing held in public i.e. at trial CPR32.12(c).
A claimant, a baker, has brought a claim against two defendants in the County Court arising from breach of contract and in negligence concerning a delivery of flour supplied to him by the first defendant. The first defendant had obtained the flour from the second defendant, a farmer. Following service by the claimant on the first defendant of a notice to admit facts, the first defendant admits that the flour supplied to the claimant was contaminated.
Which of the parties may make use of this admission?
Only the claimant may use the admission against the first defendant.
A claimant has brought proceedings in the County Court for breach of contract as he ordered a quantity of goods from the defendant which were not received. In his defence, the defendant states that the goods were dispatched as agreed and that he received a proof of posting receipt, which he has mislaid. In due course, disclosure takes place. The defendant discloses a proof of posting receipt. Upon inspection, the claimant does not believe the receipt to be genuine. The claimant’s solicitor advises that a notice should be served on the defendant requiring the proof of posting receipt to be proved at trial.
What is the best reason why such a notice should be served?
To protect the claimant’s position as otherwise the claimant will be deemed to admit the authenticity of the document.
A client, the claimant, is concerned about the reporting of an upcoming trial in which she is keen to protect her reputation and that of her business. There are no grounds upon which the trial may be held in private. The client is particularly worried that witness statements produced at trial may be used by others as evidence to bring claims against her.
Which of the following statements is correct about witness statements which are put in evidence at trial?
b) Witness statements which have been put in evidence at a trial held in public may be used for purposes other than the proceedings in which they have been served.
A solicitor is advising a client in a civil case. Witness statements are due to be exchanged in two weeks’ time in accordance with the court’s directions. One of the witness statements to be exchanged includes evidence about what the witness was told by his work colleague about the circumstances of an accident giving rise to an injury at work. It is intended that this witness give evidence in due course at trial.
What, if anything, should the solicitor do to ensure that the client will be able to rely on the evidence contained within the witness statement?
The solicitor need take no additional further steps, as serving the witness statement in accordance with the timetabled direction is deemed to be notice of the intention to rely on any hearsay contained within it.
A solicitor is advising a client following receipt of a witness statement and a notice from the defendant’s solicitors indicating the defendant’s intention to rely on hearsay evidence although the witness is not being called. The statement includes information that the witness was told by his supervisor that safety procedures were followed correctly at all times. This evidence is central to the case. However, no explanation is provided as to why the witness is not being called and there is no statement from the supervisor. The managing director of the defendant company is being called to give evidence.
What should the solicitor tell the client regarding the weight that is likely to be attached to the hearsay evidence?
c) The court is likely to consider whether it would have been reasonable and practicable to produce the supervisor as a witness, whether the statement was made contemporaneously with the occurrence of the matters stated, and other relevant factors in determining the weight of the hearsay evidence.
The court will not necessarily disregard the hearsay evidence entirely. Instead, it will evaluate the weight to be attached to it based on the factors listed in Section 4 of the Civil Evidence Act 1995, such as the practicability of producing the original witness and the reliability of the hearsay evidence and the reason why the witness has not been called particularly if it appears that there is an attempt to prevent proper evaluation of is weight.
