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Civil Litigation > Evidence of Fact (Syllabus 19) > Flashcards

Evidence of Fact (Syllabus 19) Flashcards

1
Q

What powers of control of evidence does the court have?

A

the court can control evidence bu giving directions as to-

(1) the issues on which it requires evidence;
(2) the nature of the evidence which it requires to decide those issues; and
(3) the way in which the evidence is to be placed before the court.

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2
Q

Can the court exclude evidence tray would otherwise be admissible?

A

Yes

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3
Q

Can the court limit cross-examination?

A

Yes

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4
Q

What is the general rule of evidence of witnesses?

A

any fact which needs to be proved by the evidence of witnesses is to be proved-

(a) at trial, by their oral evidence given in public; and
(b) at at any other hearing, by their evidence in writing.

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5
Q

What directions can the court give in relation to the evidence of witnesses?

A

(1) identifying or limiting the issues to which factual evidence may be directed
(2) identifying the witness who may be called or whose evidence may be read; or
(3) limiting the length or format of witness statements.

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6
Q

Can evidence be given by any other means?

A

by video link or other means.

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7
Q

What are the requirements for serving a witness statement?

A

the court will order a party to serve on the other parties any wonted statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.

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8
Q

What is a witness statement?

A

a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

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9
Q

If a party has served a statement and wishes to rely on the evidence of that witness what must happen?

A

the party must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.

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10
Q

Where a witness is called to give evidence, what is his evidence in chief?

A

his written statement unless the court orders otherwise.

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11
Q

What can a witness giving oral evidence do with the permission of the court?

A

amplify his witness statement and give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.

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12
Q

When will the court give permission to amplify a witness statement?

A

the court will give permission only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

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13
Q

What can another party do, if the party who has served the witness statement does not call the witness to give evidence at trial or put the witness statement in as hearsay evidence?

A

the other party can put that witness statement in as hearsay.

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14
Q

Why would the witness statement be ordered not to be the evidence in chief?

A

where it deals at large with issues that are not contested, as this prevents there from being any saving of time.

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15
Q

When would a witness wish to amplify their statement?

A

when new issues have arisen, or things have been discovered since they made their statement.

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16
Q

Where should amplification not be allowed?

A

where it would cause a shift of focus from the real issues in dispute, or where it is too late and would cause injustice to the opponent.

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17
Q

How is evidence given at hearings other than trials?

A

usually by witness statement unless the court, a PD or other enactment requires otherwise.

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18
Q

What else can parties relies on at hearings other than trial?

A

(1) his statement of case; or

(2) his application notice, if the statement of case or application notice is verified by a statement of truth.

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19
Q

What can a party do if they wish to cross-examine at a hearing other than a trial?

A

the party may apply to the court for permission to cross-examine the person giving the evidence in the statement.

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20
Q

If the court gives permission for a party to be cross-examined, at a hearing other than trial, but they do not turn up, what happens?

A

the evidence cannot be sued unless the court gives permission.

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21
Q

What form must the witness statement take?

A

it must comply with the requirements of PD 32

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22
Q

What is a witness summary?

A

a summary of-

(1) the evidence if known, which would otherwise be included in a witness statement; or
(2) if the evidence is not known, the matters which the party serving the witness summary proposes to question the witness.

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23
Q

When will a witness summary be used?

A

when a party is required to serve a witness statement for use at trial but is unable to obtain one.

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24
Q

How is a witness summary obtained?

A

the party who was unable to obtain the witness statement may apply without notice for permission to serve a witness summary instead.

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25
Q

What are the consequences of a failure to serve a witness statement or summary?

A

if a witness statement or summary for use at trial is not served within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

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26
Q

What can a witness be cross-examined on?

A

Where a witness is called to give evidence at trial the witness can be cross-examined on his statement whether or not that statement or any part of it was referred to during the witness’s evidence.

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27
Q

Can the witness statement be used for any purpose other than the trial it was served for?

A

No unless-

(1) the witness gives consent in writing to some other use of it
(2) the court gives permission for some other use; or
(3) the witness statement has been put in evidence at a hearing held in public.

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28
Q

Can witness statements be inspected?

A

witness statements which stand as evidence in chief are open to inspection during the course of a trial, unless the court orders otherwise.

29
Q

Can a party ask for a direction that a witness statement is not open to inspection?

A

Yes

30
Q

When will a court be satisfied that a witness statement should not be open to inspection?

A

If-

(1) the interests of justice
(2) the public interest
(3) the nature of medical evidence in the statement
(4) the nature of any confidential information in the statement; or
(5) the need to protect the interests of any child/protected party.

31
Q

What happens if a person makes a false statement in a document, or causes one to be made?

A

proceedings for contempt of court may be brought against that person

32
Q

When might evidence be given by affidavit instead of witness statement?

A

where this is required by the court, a provision contained in any other rule, PD or enactment.

33
Q

Can a witness give evidence by affidavit at a hearing other than a trial?

A

Yes nothing precludes this but the party putting forward the affidavit may not recover the additional costs of making it unless the court orders otherwise.

34
Q

What form must an affidavit take?

A

it must comply with PD 32

35
Q

When must a notice to admit facts be served?

A

no later than 21 days before trial

36
Q

Where a party makes an admission in response to the notice to admit facts where can this be used against him?

A

only in the proceedings in which the notice was served and by the party who served the notice.

37
Q

Can a party amend or withdraw any admission made by him on a notice to admit facts?

A

Yes, the court may allow this on such terms as it thinks just.

38
Q

What should a party do if they dispute the authenticity of a document?

A

serve notice that he wishes the document to be proved at trial under CPR r.32.19

39
Q

When must a notice to prove a document be served?

A

(1) by the latest date for serving witness statements; or

(2) within 7 days of disclosure of the document, whichever is later.

40
Q

What is the scope of CPR 34?

A

CPR 34 provides the circumstances in which a person may be required to attend court to give evidence or produce a document; and for a party to obtain evidence before a hearing to be used at the hearing;

41
Q

What are witness summonses?

A

documents issued by the court requiring a witness to-

(a) attend court to give evidence; or
(b) produce documents to the court.

42
Q

can the same witness summons be used for more than one witness?

A

No, a separate summons is required for each witness.

43
Q

When might a witness summons require a witness to produce documents?

A

either-

(1) on the date fixed for a hearing; or
(2) on such date as the court may direct.

44
Q

What documents can a summons require a person to produce before a hearing?

A

documents which that person could be required to produce at a hearing

45
Q

When is a witness summons issued?

A

on the date entered onto the summons by the court

46
Q

When does a party need permission from the court to have a summons issued?

A

(1) to have a summons issued less than 7 days before the date of the trial
(2) have a summon issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or
(3) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except trial.

47
Q

Who must issue a witness summons?

A

the court where the case is proceeding or the court where the hearing in question will be held.

48
Q

Can the court set aside or vary a summons?

A

Yes

49
Q

Can a court issue a witness summons for an inferior court or tribunal?

A

yes but this court must be the court to set aside/vary the summons

50
Q

When will a witness summons be binding?

A

if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.

51
Q

Can a witness summons still be binding if it is not served at least 7 days before the witness is required to attend the court?

A

Yes, if the curt directs twos.

52
Q

When is a witness summons binding until?

A

until the conclusion of the hearing

53
Q

Who is to serve a witness summons?

A

it is to be served by the court unless the party on whose behalf it is issued indicates in writing that he wishes to serve it himself.

54
Q

If the witness summons is being served by the curt what must the party on whose behalf the court is issuing the summons do?

A

deposit to the court office the money to be paid or offered to the witness under this rule.

55
Q

When a witness summons is served what must the witness be offered or paid?

A

a sum reasonably sufficient to cover his expenses in travelling to and from the court; and such sum by way of compensation for lost time.

56
Q

Can a party apply for an order for a person to be examined before a hearing takes place?

A

Yes

57
Q

What is the name of evidence from an examination before a hearing takes place?

A

a deposition and the person from who the evidence is obtained s the deponent.

58
Q

Who is a deponent examined by and what under?

A

by a judge, examiner of the court or such other person as the court appoints. They are under oath.

59
Q

What must an order for a deposition state?

A

the date, time and place of the examination

60
Q

what is an alternative to a deposition?

A

evidence by video link will be preferable and often cheaper and has the further advantage that the trial judge will hear the evidence first hand.

61
Q

How must the examination fo a witness be conducted?

A

in the same way as if the witness were giving evidence at a trial.

62
Q

Can the examiner conduct an examination on a person not named in the order?

A

yes if all the parties are present and all the parties and the person to be examined consent.

63
Q

Can examinations be conducted in private?

A

yes if the examiner considers it appropriate to do so.

64
Q

what must the examiner ensure with regard to the evidence given by witnesses?

A

that it is recorded in full

65
Q

who must the examiner send a copy of the deposition to?

A

(1) to the person who obtained the order for the examination of the witness; and
(2) to the court where the case is proceeding

66
Q

What must the party who obtained the order for deposition do once they receive a copy?

A

send a copy go the deposition to all other parties.

67
Q

When can a deposition be used?

A

in evidence at hearing unless the court orders otherwise

68
Q

If a party intends to put in evidence a deposition at a hearing what must he do?

A

serve notice of his intention to do so on every other party, and serve this notice at least 12 days before the day fixed for the hearing.

69
Q

If a deposition is given in evidence at trial, what is it treated like?

A

it will be treated as if it were a witness statement

Civil Litigation (24 decks)

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