WS7 - Evidence Flashcards
Introduction to witness and expert evidence: What are three main stages of preparing and exchanging evidence?
- Disclosure and inspection
- Evidence of witnesses of fact and then in some cases
- Expert evidence
Introduction to witness and expert evidence: What is the difference between witness and expert evidence?
- Witness is direct evidence of what they have perceived with their own senses.
Note - It can also be used for interim applicatin such as if defendant wants permission to amend defence, they will need witness evidence to explain why, etc see example below.
- Expert is a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters in their expertise.
Evidence of fact: Witnesses/Witness statements - a) Introduction: What are the relevant sections of CPR?
CPR 32.1-32.5 and 32.10-32.11
Evidence of fact: Witnesses/Witness statements - a) Introduction: What is the first point to bear in mind when considering witnesses and statements?
Firstly, put witnesss statements in context of evidence more broadly. Facts in issue must be proven by admissiable evidence to which there are three types:
* Documents - Disclosure and Inspection is relevant here.
* Witness evidence (testimony) in which there are two types:
(a) Witnesses of fact
(b) Expert witnesses
* Real evidence - “Real items” that are abbuced as evidence.
Evidence of fact: Witnesses/Witness statements - a) Introduction: What is the second general point to bear in mind?
The courts broad power to control evidence should be considered as it ahs power to control all evidence, not just witnesses by giving directions as to
* The issues on which it requires evidence
* The nature of the evidence it wants
* The way evidence is to be placed before the court
As well as exclude evidence that would be otherwise admissible or limit cross examination.
Evidence of fact: Witnesses/Witness statements - b) What is a witness statement: What is the general rule for statements?
- CPR 32.2(1)(a) - Any fact which needs to be proven by evidence of witness will be by oral evidence (can be video link)
- A witness statement is therefore written statement signed by a person which contains evidence that person would be allowed to give orally.
Evidence of fact: Witnesses/Witness statements - b) What is a witness statement: What does witness evidence stand as at trial?
- Evidence in chief which means witness will be asked to confirm truth of statement in witness box.
- The prupose of their attendance is to allow other parties counsel to cross examine the witness who will then be reaxmined by own party.
Evidence of fact: Witnesses/Witness statements - c) Service: When will direction as to service be given?
- Directions to exchange witness statements usually given at allocation and case management stage.
- Directions will usually include date for exchange with other party but not usual to be filed at court, although this can be ordered. (If not served within this time, witness may not be called to give oral evidence unless court permits - CPR 32.10.)
Evidence of fact: Witnesses/Witness statements - c) Service: What else can the direction set out?
- Limiting the issues
- Identifying the witness whose evidence may be used
- Limiting the number, lenght or format of witness statements
- Specifying the order in which witness statements are to be served
Evidence of fact: Witnesses/Witness statements - c) Service: What must be done if wishing to rely on served witness statement?
Must call the witness to give oral evidence at trial or put in statement as hearsay evidence - CPR 33.
Evidence of fact: Witnesses/Witness statements - c) Service: What is the step in the civil action for Witness evidence?
- Exchange of witness statement generally step that follows disclosure and inspection.
- Expert evidence than usually follows witness statement exchange as experts will usually need to consider disclosure and witness evidence before finalising their reports.
Evidence of fact: Witnesses/Witness statements - c) Service - i) Extending time for service: What can parties agree?
- Parties can agree in writing extensions of up to 28 days (and filing if ordered) without need for court approval provided any such extensions does not put hearing at risk - CPR 28.4 and 29.5
Evidence of fact: Witnesses/Witness statements - c) Service - i) Extending time for service: What is an agreement to extend time is agreed which does affect key date?
Applicaiton should be made to court for the extension under CPR 3 to avoid risk of court not approving agreemnt at trial.
Evidence of fact: Witnesses/Witness statements - c) Service - i) Extending time for service: What if an agreement to extend cannot be agreed?
Application should be made to court.
Evidence of fact: Witnesses/Witness statements - c) Service - i) Extending time for service: What if no extension agreed and statements served late?
Party would need to make application for relief from sanctions which would essentially be that the witness may not be called to give evidence - CPR 32.10.
Evidence of fact: Witnesses/Witness statements - d) Presentation of evidence What discretion does court retain?
- On the presentation of evidence.
- As well as an abiility to limit cross examination - CPR 32.1(3)
Evidence of fact: Witnesses/Witness statements - d) Presentation of evidence What can a witness giving oral evidence do with permission of court?
- Amplify the witness statement or give evidence in relation to new matters which have arisen since service of statement.
- However, court unlikely to permit aplication of evidence which is essentially late, unjustified change of tack or to remedy definciencies as this would create injustice to other party.
Evidence of fact: Witnesses/Witness statements - e) WS’s and Interim applications: What must interim applications be supported by?
- Vast majority must be supported by written evidence setting out facts to justify the application.
- Respondent will also wish to rely on written evidence to oppose.
- Unless written evidence in SoC or application notice, it will usually be in a witness statement addressing issues of interim appliction only.
Evidence of fact: Witnesses/Witness statements - e) WS’s and Interim applications: What is the general rule which applies for witness evidence other than for trial?
- Other than for trial, any fact which needs to be rpoven is proved by their evidence in writing - CPR 32.2(1)(b) which means they will not generally give evidence in person at interim hearing or is cross examined, court simply relies on statement.
- Clearly different to general rule that applies for trial which requires oral evidence but any party may apply for permission to cross exmanine - CPR 32.7 but this is very unusual.
Evidence of fact: Witnesses/Witness statements - f) Content of WS’s: What should a witness statement cover?
- Every fact which needs to be prven by witness evidence.
Note - The witness statement must be in witnesses own words, although usually drafted by lawyer, they will proof the witness by interview and draft then allow witness to amend as needed.
Evidence of fact: Witnesses/Witness statements - f) Content of WS’s: What are the relevant questions to ask in deciding content?
- What is the argument
- What is the legal basis for the argument
- What are the facts this witness can speak about to support the legal arguments.
Evidence of fact: Witnesses/Witness statements - f) Content of WS’s: What should be included on WS?
- It must be verified by statement of truth.
- Any witness who makes a false statement of truth without honest belief in truth of that statement may face proceedings for contempt - CPR 32.14 so prudent to warn them of this before taking their statement.
Evidence of fact: Witnesses/Witness statements - f) Content of WS’s - i) Opinion Evidence: What is the general rule of opinions of witnesses?
- They are not admissionable
- Witnesses normally confined to stating the facts only and this rule is because it is role of the court to form any opinions which need forming and witnesses could influfence the court with their opinion.
Evidence of fact: Witnesses/Witness statements - f) Content of WS’s - i) Opinion Evidence: What are the two exceptions to general rule on opinions?
There are two situations when opinion evidence is admissible: - S3 Civil evidence Act 1972:
* Perceived facts
* Expert opinion - See later section on Expert evidence
Evidence of fact: Witnesses/Witness statements - f) Content of WS’s - i) Opinion Evidence: What is the p[osition of perceived facts?
These types of statement generally will be admissible as long as proper appraisal of the facts does not call for special expertises.
Evidence of Fact: Form of WS’s: What are the relevant sections of CPR?
- CPR 32.8 and 32 PD 17-20 - In relation to WS’s generally
- 57 AC PD - In relation to trial witness statements in business and property courts.
Evidence of Fact: Form of WS’s - a) General form of WS’s: What must WS comply with?
A witness statement must comply with certain requirements for content and presentation - CPR 32.8 and 32 PD 17-20.
Evidence of Fact: Form of WS’s - a) General form of WS’s: What are the requirements for the heading of the WS?
See Screenshot below which shows heading requirements.
Evidence of Fact: Form of WS’s - a) General form of WS’s: What are the requirements for the early content of WS’s?
Evidence of Fact: Form of WS’s - a) General form of WS’s: What are the requirements for exhibits of the WS?
Evidence of Fact: Form of WS’s - a) General form of WS’s: What are the requirements for the ending?
Evidence of Fact: Form of WS’s - b) WS’s for use other than trial: What is the difference for interim hearing WS’s?
- There are formatting difference in WS prepared for an interim hearing to one prepared for trial.
- There are two extra paragrapgs to be included in WS for interim hearing
Evidence of Fact: Form of WS’s - b) WS’s for use other than trial: What is the first extra paragraph?
A paragraph should be included near begining after information and belief paragraph to confirm reason for statement.
Evidence of Fact: Form of WS’s - b) WS’s for use other than trial: What is the second extra paragraph?
At the end of the WS before statement of truth and it should confirm what the witness would lke the court to do in relation to the interim application.
Evidence of Fact: Form of WS’s - c) Form of WS in business/property courts: When criteria are relevant to determine if additional rules relevant?
- The statement is for use at trial (not for interim hearings) and
- Trial is to take place in the business and property courts
Evidence of Fact: Form of WS’s - c) Form of WS in business/property courts: What are the additional rules if criteria met?
- Statement must idetnify what docs the witness has referred to for purpose of providing evidence set out in WS.
- As well as statement of truth, they must include signed confirmation that the witness understand purpose of statement is not to argue the case not to take court through documents in case.
- Statement must include confirmation of an appropiate legal rep that rules explained to witness and that they believe they will comply with them.
Evidence of Fact: Affidavits: What is the relevant sections of CPR?
CPR 32.16 and 32 PD 2-16 - In relation to affidavits
Evidence of Fact: Affidavits: What is sometimes required by the court?
- Witness statements are main form of evidence of fact, but it sometimes court or a rule will require it to be given by affidavit such as application for search/freezing order.
Note - Party can choose to give evidence by afidavit at a hearing other than a trial if they wish to do so - CPR 32.15
Evidence of Fact: Affidavits: What is the difference between affadvit and WS?
- It is written statement of evidence which is sworn before a person authorised to administe affidavits instead of statement of truth.
Content is the same as WS, however, the form is different and must comply with the specific requirements of CPR 32.16 and 32 PD 2-16.
Evidence of Fact: Affidavits: What is a person known as who gives evidence by affidavit?
A deponent.
Evidence of Fact: Affidavits - a) Form of Affidavits: What is the different requirements for headings?
Evidence of Fact: Affidavits - a) Form of Affidavits: What is the different requirements for the early content?
Evidence of Fact: Affidavits - a) Form of Affidavits: What is the different requirements for exhibits?
Evidence of Fact: Affidavits - a) Form of Affidavits: What is the different requirements for the ending?
Civil Evience - Hearsay and admissibility: What are the relevant sections of the CPR?
CPR 33
33 PD
Civil Evience - Hearsay and admissibility - a) Introduction: What is the general rule on admissbility?
All evidence that is relevant to the facts is admissible in civil proceedings.
Civil Evience - Hearsay and admissibility - a) Introduction: What three areas have special rules?
- Opinion evidence - See above
- Evidence which is privileged - See WS6
- Hearsay evidence
Civil Evience - Hearsay and admissibility - b) Hearsay: What is hearsay?
- An oral or written statement
- Made out of court
- Which is bein adduced in court to prove truth of the matter stated.
Civil Evience - Hearsay and admissibility - b) Hearsay - i) General rule: What is the general rule?
- Hearsay is indirect evidence, whether written or oral and it is admissible in Civil proceedings by virtue of s1 Civil evidence act 1995.
- However, it is treated carefully by the court as it is indirect evidence and therfore less reliable than direct, documentary or real evidence.
Civil Evience - Hearsay and admissibility - b) Hearsay - ii) Special rule: What is in place and when do they apply?
- Number of procedural safeguards in CEA 1995 to ensure hearsay evidence scrutinised.
- Note - These only apply to hearsay evidence to be given at trial, and rules are more relaxed at other stages.
- If party intends to use, they should consider if notice of intention to rely needs to be given.
Civil Evience - Hearsay and admissibility - b) Hearsay - ii) Special rules: Step 1: When and how must notice be given?
If party intends to rely on hearsay, must give notice it intends to do so to other party, and rules state how it should be given - CPR 33.2:
* If evidence is in a witness statement of person to give oral evidence, no formal notice required and notice of hearsay deemed served when witness statements served, no seperate communication needed.
* If evidence is in a witness statement of person not giving oral evidence at trial, no formal notice but other party must be informed the witness will not be giving evidence at trial and why.
* In all other cases, formal notice must be given to other party identifying the hearsay and stating that they wish to rely and reaosn why witness will not be called.
**Note - If notice not given, it is still admissible but weight court attaches to it is less and offending party may be penalised in costs. **
Civil Evience - Hearsay and admissibility - b) Hearsay - ii) Special rules: Step 2: What are the options for a party on receipt of notice of intention above?
Civil Evience - Hearsay and admissibility - b) Hearsay - ii) Special rules: Step 2: What does requesting particulars of hearsay do?
S2 CEA 1995 - Party receiving notice can request particulars of hearsay that are reaosnable and pracible for purpose of enabiling it to deal with any matters arising from evidence being hearsay.
Civil Evience - Hearsay and admissibility - b) Hearsay - ii) Special rules: Step 2: What if the party calls for cross examination?
- If party adduces hearsay evidence of statement and does not call them as a witness, any other party may, with leave of the corut, call that person as a witness and cross examine them on the statement as if they had been called by first mentioned party and as if the hearsay statement was evidence in chief - CPR 33.4.
- THis could have devasting tactical effects such as if witness is weak and application must be made no longer than 14 days after hearsay notice served.
Civil Evience - Hearsay and admissibility - b) Hearsay - ii) Special rules: Step 2: What if the party challenges the weight of hearsay evidence?
S4 CEA 1995: Possible to challenge wieght the court will attach and the factor court will consider when assessing incluude:
* If it would have been reasonble and practiable for party who adduced the evidence to have procedued the maker of the original statement as witness.
* Whether the original statement was made comtemporaneously to matters stated and
Whether evidence involves multiple hearsay
Civil Evience - Hearsay and admissibility - b) Hearsay - ii) Special rules: Step 2: What if the party attacks the credibility of an absent witness?
- If person wishes to rely but does not propos to call the person who made the original ntoice, party receiving the notice can attack the credibility of absent witness, even though they are not at trial.
- The attack should show absent witness made previousl inconsisent or contradictory statements and if intending to, receiving party must notify adducing party of intention to attack no later than 14 days after hearsay notice served.
Civil Evience - Hearsay and admissibility - b) Hearsay - iii) In plans, photographs and models: What does the definition of hearsay mean?
- THat it includes statements made in documents or any other medium in which information is recorded so plans, photographs and models included.
Therefore, unless notice is given for this tpye of evidence, it will not be receivable at trial.
Civil Evience - Hearsay and admissibility - c) Convictions as evidence: What is the impact if person convicted of an offence in UK court?
The fact of conviction is admissible in evidence to prove they committed the evidence and proving the offence must be relevant to the proceedings.
Civil Evience - Hearsay and admissibility - c) Convictions as evidence: What is the position if person proved to have been convicted?
- (a) He shall be taken to have committed that offence unless contrary proven; and
- (b) Contents of any document admissble of the conviction (and contents of ifnormation, complaint, charge sheet on which person convicted) shall be admissible in evidence for purpose of identifying the facts on which conviction based.
Note - This does not mean a conviction ends the issue, instead, person wanting to prove contrary wil have burden of proving person convicted did not comit the offence on balance of proceedings.
Expert Evidence - Introduction: What are the relevant CPR?
CPR 35
35 PD
Expert Evidence - Introduction: Where does expert evidence fall into litigation process?
As discussed above, echange of experty evidence usually follows exchange of witness evidence.
Expert Evidence - a) What is it: What is an expert?
- A highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within the expertise.
- Not all cases will require expert evidence.
Expert Evidence - a) What is it: What is required to rely on expert evidence?
- A court order giving permission to do so.
- THere are particular tules for submitting expert evidence under CPR 35 and 35 PD.
Expert Evidence - b) Opinion Evidence: What is the general rule?
As noted above, generla rule is the opinions of witnesses are not admissible and confined to stating the facts.
Expert Evidence - b) Opinion Evidence: What is the position for expert opinion?
S3 Civil Evidence Act sets out an exception to the general rule and the court ultimately decides who is an expert and experince does not need to be formal but must be suitably qualfieid and experince. (In practice, solicitor/counsel will decide what type of expert a case needs)
Expert Evidence - c) Using expert evidence - (i) Duties of court: What duty does the court have?
- Duty to restrict exper evidence to that which is reasonably required to solve proceedings - CPR 35.1.
- If issues factual and do not require expert, court should refuse for it to be used at trial.
- General rule allows court to restrict evidence otherwise admissible to further overriding objective.
Expert Evidence - c) Using expert evidence - (i) Duties of court: What is it important to disinguish between?
- Courts permission to instruct experts is not required and can isntruct as many as it likes.
- It is permission to rely on the expert evidence in proceedings which is required and parties usually obtain by seeking direction from court at case management stage.
Expert Evidence - c) Using expert evidence - (i) Small, Fast and Intermediate track: What is court more likely to do on these tracks?
Restrict expert evidence.
Expert Evidence - c) Using expert evidence - (i) Small, Fast and Intermediate track: What factors do court consider when allocating to fast track?
Tht oral evidence at trial will be limited to:
* One expert per party in relation to any expert field and
* Expert evidence in two expert fields
Expert Evidence - c) Using expert evidence - (i) Small, Fast and Intermediate track: What factors do court consider when allocating to intermediate track?
Oral expert evidence is likely to be limited to two experts per party.
Expert Evidence - c) Using expert evidence - (i) Small, Fast and Intermediate track: What happens if small track or fast track?
If permission given, it will normally be given for evidence from only one expert on a particular issue - CPR 35.4(3A)
Expert Evidence - c) Using expert evidence - ii) Applying for permission: What must parties do when applying?
- Provide estimate of costs of proposed expert evidence
- Idetnify the field in which expert evidence is required and if pracitcable, the name of proposed expert - CPR 35.4(2)
THis should be set out in directions questionaire.
Expert Evidence - c) Using expert evidence - ii) Applying for permission: What should parties be cautious of in directions questionaire?
Naming an expert as if court orders named expert to be used, party will have to go back to court to obtain permission to use different expert.
Expert Evidence - d) Duty and role of an expert: Who is expert duties to help?
THe court on matters within their expertise and this overrides any obligations to the party instructing the expert - CPR 35.3.
Expert Evidence - d) Duty and role of an expert: What are the guidelines which govern expert duties?
Ikarian Reefer Guidlines were incorporated into rules and set out:
* Expert evidence presented to a court should be the indepedent product of the expert, uninflufence as to form or content by pressures of litigation.
* Indepedent assistance should be provided to court by way of objective, unbiased opinion regarding matters in their expertise and should not assume role of advocate.
* They should state facts or assumptions on which opinion is based and should not omit material facts which could detract from their concluded opinion.
* They should make clear if question falls outside their expertise.
* If, after exchange of reports, an expert changes their mind on material matter, it should be comunicated to other party and when appropiate the court.
* Photographs, plans, surveys and other documents refered to in exper evidence must be provided to other side at same time as exchange of reports.
Expert Evidence - e) The process - i) Instructing experts: Are letters of instruction privileged?
- Not privileged from inspection - CPR 35.10
- THe court will not, however, requie disclosure and inspection of specific document or cross examination of expert in relation to instructions unless it considers that the instructions as summarised by expert, are inaccurate or incomplete.
**So, party without reasonable grounds that they are inaccurate cannot force disclosure/inspecton, however, it is therefore important to be careful when instructing. **
Expert Evidence - e) The process - ii) Expert Reports: How must evidence be presented?
In written report unless court directs otherwise - CPR 35.5.
Expert Evidence - e) The process - ii) Expert Reports: What is the form of the report required by rules?
Expert Evidence - e) The process - ii) Expert Reports: What is the position for privilege and draft reports?
Earlier draft before final version is generally subject to litigation privilege and therfore privileged from inspection but waived in the final version of report when served.
Expert Evidence - e) The process - iii) Exchange of reports What must parties do to rely on a trial?
- Exchanged with other side as per directions
- Court can order simultanerous or sequential exchange.
Expert Evidence - e) The process - iii) Exchange of reports What will failure to exchange lead to?
Evidence cannot be used unless court gives permission.
Expert Evidence - f) Single joint experts: What can parties do to save costs?
- Parties can agree to appoint single joint expert instead of own expert.
- Even if they do not, court has power to permit only single joint expert.
Expert Evidence - f) Single joint experts: When are they oftne used?
- Small, fast and intermediate track matters and court will give directions for this unless good reason not to - 28 PD 3.9
- Less likely in complex multi-track claims.
Expert Evidence - f) Single joint experts: How should parties deal with single joint expert?
- They should be copied into all relevant correspondence with transparancy at all times.
- E.G: COuld work for both parties to co-operate and produce a joint letter of instruction and if not, and give seperate, must send copy to the other party - CPR 35.8.
Expert Evidence - f) Single joint experts: What if the parties cannot agree on the expert?
Court can select from a list prepeaed by the parties or direct that the expert be selected in some other manner.
Expert Evidence - g) Questions - i) By a party to expert: What do the rules allow once reports exchanged?
CPR 35.6 - To put written questions to toher party;s expert or to single joint expert, if thereis one.
Expert Evidence - g) Questions - i) By a party to expert: What provisions apply in relation to these questions?
- Questions can only be put once
- Questions should generally be only for clarifying the report
- Questions must be submit within 28 days of service of report.
- A copy of questions must be sent to other party.
- No time limit for expert to answer unless ordered by court.
- Answers to the questions become part of report.
- If expert does not answer, court can order party who instructed cannot rely on the evidence or recover fees from other party.
Expert Evidence - g) Questions - i) By a expert to court: When can experts submit?
May submit written request for direction to court to help carry out task - CPR 35.14 and unless court orders otherwise, expert must:
* Provide to the party instructing the expert, a copy of any proposed request for directions at least seven days before filing it at court.
* Provide a copy to all other parties at least four days before filing at court.
Expert Evidence - g) Questions - i) By a expert to court: What can court direct when gviing directions?
Can direct a party also be served with a copy of the directions.
Expert Evidence - g) Questions - i) By a expert to court: What must be done if order requires act by an expert or affect them?
Party instructing them must serve a copy of order on the expert - 35 PD 8.
Expert Evidence - h) Discussions between experts: What do rules make provision for after submitting evidence?
- COurt to direct experts to discuss various expert issues in dispute (they may specify issues for them to discuss and may direct for a joint statement to be produced after the meeting on what they agree and what they do not with reasons. - CPR 35.12.
- THis ensures they can identify the issues of the case and where possible, reach agreed opinion.
Expert Evidence - h) Discussions between experts: Are these agreements between expert binding?
No, they are not unless parties expressly agree to be but should give careful cosnideration before refusing and should be able to explain why they have should it become relevant at issue of costs.
Expert Evidence - h) Discussions between experts: Who attends expert discussion?
Unless ordered by court or agreed by parties/experts, neither party of reps attend and if legal reps do, they should not normally inervene other than to asnwer questions or advise on law.
Expert Evidence - h) Discussions between experts: What if party considers exper stepped out expertise or acted incompetently in reaching agreement?
They can argue:
* Agreement should not be accepted by the court
* Party should adduce further evidence if it felt good reason to suppose that first exper modified their opinion for reasons that cannot properly and fairly support revised decision.
Expert Evidence - i) Oral evidence and “hot tubbing”: What else may court grant permsision for?
- To call an expert to give oral evidence at trial.
- In small/fast track, court will only order them to give oral evidence if in interests of justice to do so.
Expert Evidence - i) Oral evidence and “hot tubbing”: How will evidence be presented if permission for expert to give oral evidence given?
- Claimant will often present all the evidence support case first and if appropiate, oral evidence of expert and then defendant do te same.
- But court can direct expert evidence to be given differently such as an issue by issue basis or by hot tubbing.
Expert Evidence - i) Oral evidence and “hot tubbing”: What is hot tubbing?
- Where some or all evidence from experts from similar disciplines given concurrently
- In relation to an issue, judge will ask experts in turn for their views and comment.
Expert Evidence - j) Unfavourable expert reports What are the options for party who receives unfavourable report from an expert?
Expert Evidence - j) Unfavourable expert reports What if party decides it would prefer to call different expert?
- Must seek courts permission to do so - CPR 35.4.
- Often, court will only allow second expert report if first report is disclosed to prevent partys expert shopping for best opinion.
Expert Evidence - j) Unfavourable expert reports What are consequence of seeking court permission for second report?
- May be considerable difficulty in obtaining the permission and will only do so in exceptional circumstances.
- There may also be possible costs sanctions or loss of credibility.
SO, ultimately, if unfavourable, that party may want to consider settlement.
Expert Evidence - j) Unfavourable expert reports What can the other party do if instructing party does not want to rely?
If party decides not to rely on expert report once disclosed, the other may may still rely on it at trial - CPR 35.11.
