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Civil Litigation 2.0 > 19. Evidence of Fact > Flashcards

19. Evidence of Fact Flashcards

1
Q

What powers of control of evidence does the court have?

A

(A) the court can control evidence by 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.

(B) The court can also exclude evidence that would otherwise be admissible.

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2
Q

Can the court limit cross-examination?

A

Yes

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3
Q

What is the general rule regarding how evidence of witnesses must be proved at trial and at other hearings?

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 (i.e. by witness statement).

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4
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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5
Q

Can the court allow a witness to give evidence through a video link or by any other means?

A

Yes

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6
Q

What matters may a party rely on at hearings other than the trial?

A

Any matters set out in:

(i) his statement of case; or
(ii) his application notice

if the statement of case or application notice is verified by a statement of truth.

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7
Q

Can a party at a hearing other than a trial cross-examine a person who has given written evidence?

A

Yes - the party wishing to cross-examine must apply to the court. If the court gives permission and the person who gave evidence does not attend as required by the order, the other side may not use the written evidence.

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8
Q

What is the consequence of making or causing a false statement to be made in a document, prepared in anticipation of a or during proceedings and verified by a statement of truth, without an honest belief in its truth?

A

Proceedings for contempt of court can be brought.

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9
Q

When does evidence have to be given by affidavit (instead of or in addition to a witness statement)?

A

When required by:
(1) the court,
(2) a provision contained in any other rule,
(3) a practice direction, or
(4) any other enactment

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10
Q

Can a witness give evidence by affidavit even when not required to do so?

A

Yes - but the additional costs are not recoverable unless the court orders otherwise

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11
Q

What can be done where it would be impossible for a witness to attend court to give evidence?

A

Apply to take evidence by deposition (in this case the witness is referred to as a ‘deponent’).

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12
Q

What is ‘evidence by deposition’?

A

It’s the process whereby evidence is taken from a witness before trial. The examination takes place under oath before:

(i) a judge;
(ii) an examiner of the court; or
(iii) such other person as the court appoints

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13
Q

What MUST an order for deposition do? What MAY it do?

A

MUST:

  • State the date, time and place of examination
  • At the time of service of the order, offer the deponent to pay or pay at that time (a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and (b) such sum by way of compensation for loss of time as may be specified by PD 34A

MAY:

  • Require the production of any document which the court considers is necessary for the purposes of the examination
  • Order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
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14
Q

What is a cheaper and often preferable alternative to evidence by deposition?

A

Evidence by video link

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15
Q

How should an examination for the purposes of evidence by deposition be conducted?

A
  • Must generally be conducted as if the witness were giving evidence at trial
  • May be conducted in private if the examiner considers it appropriate
  • Examiner must ensure that the evidence is recorded in full
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16
Q

What must a party do if, at a hearing, they intend to put in evidence a deposition?

A

Serve notice of his intention to do so on every other party at least 21 days before the day fixed for the hearing

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17
Q

Can a court require a deponent to attend the hearing and give evidence orally?

A

Yes

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18
Q

Do the rules on the availability of witness statements for inspection apply to depositions?

A

Yes

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19
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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20
Q

Under what circumstances will the court order a party to serve witness statements on the other party?

A

Anytime a party wishes to rely on this evidence orally at trial. If the party is seeking to rely on oral evidence in relation to any issues of fact to be decided at trial the court will order a party to serve on the other parties any witness statement of that oral evidence.

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21
Q

What orders in relation to witness statements can the court make?

A

(1) The order in which they are to be served
(2) Whether they are to be filed

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22
Q

If a party has served a statement and wishes to rely on the evidence of that witness what must he do to be able to rely on it?

A

The party must call the witness to give oral evidence unless,

(i) the court orders otherwise, or
(ii) he puts the statement in as hearsay evidence

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23
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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24
Q

Can a witness giving oral evidence give more info orally than was contained in the witness statement?

A

Yes (referred to as ‘amplifying’) with permission of the court. Also possible to give evidence on new matters that have arisen since the witness statement was served with permission (also need permission for this). But if there are material changes it may be more appropriate to serve a supplemental witness statement

25
Q

Under what circumstances will the court give permission to amplify a witness statement in oral evidence/give new evidence orally that has emerged since the witness statement was served?

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.

26
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 in relation to that witness statement?

A

The other party can put that witness statement in as hearsay evidence

27
Q

Do witness statements have to be verified by a statement of truth?

A

Yes

28
Q

What can a party do that is required to serve a witness statement for use at trial, but is unable to obtain one?

A

Apply (without notice) for permission to serve a witness summary instead.

29
Q

What is a witness summary?

A

A summary of

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

30
Q

What must a witness summary include?

A

The name and address of the intended witness (unless the court orders otherwise).

31
Q

When must a witness summary ordinarily be served?

A

Unless the court orders otherwise - within the period in which a witness statement would have had to be served

32
Q

Do the same rules apply to witness summaries as to witness statements?

A

Pretty much - specifically the following three apply

(1) The requirement to serve witness statements for use at trial if you wish to rely on it

(2) Rules concerning the amplification of witness statements

(3) The formal requirements that the witness statement needs to comply with (i.e. Pt 32 - not on our syllabus)

N.B. unlike a witness statement, a witness summary is not verified by a statement of truth by its maker

33
Q

What is the consequence of failing to serve a witness statement in respect of an intended witness?

A

You can’t call the witness to give oral evidence (unless the court orders otherwise)

34
Q

Can a witness statement be used for purposes other than the proceedings in which it is served?

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

-> n.b. these rules also apply to affidavits

35
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.

36
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.

37
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.

38
Q

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

A

Yes

39
Q

What must the court be satisfied of before making an order that a witness statement should not be open to inspection?

A

That it should not be open to inspection because of:

(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.

40
Q

Can a court order that only parts of a witness statement be excluded from inspection?

A

Yes - it can order that words or passages only are excluded.

41
Q

What is a witness summons?

A

A document 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

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

A

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

44
Q

When is a witness summons issued?

A

On the date entered onto the summons by the court

45
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 summons 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.

My comment: basically this means that you can get a summons issued without permission if all you are trying to do is to get the witness to attend the trial and you sort this out early enough

46
Q

Which court must issue a witness summons?

A

(i) the court where the case is proceeding or
(ii) the court where the hearing in question will be held

47
Q

Can the court set aside or vary a summons?

A

Yes

48
Q

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

A

Yes - where a court does not have power to issue a witness summons in relation to proceedings before it, a ‘higher ranking’ court with that power can do it for it.

N.B. where this happens the court that issued the summons has the power to vary it or to set it aside

49
Q

How many days before the date on which the witness is required to attend must the summons be served in order for it to be binding?

A

At least 7 days

BUT the court can direct that it is to be binding even if it is served less than 7 days in advance

50
Q

When is a witness summons binding until?

A

Until the conclusion of the hearing which the witness was required to attend

51
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.

52
Q

If the witness summons is being served by the court 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 (i.e. travelling expenses and compensation for loss of time).

53
Q

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

A

(i) a sum reasonably sufficient to cover his expenses in travelling to and from the court; and

(ii) compensation for loss time.

54
Q

What is a notice of admission and by when does it have to be served?

A

It is a notice requiring the other party to admit the facts, or part of the case of the serving party, specified in the notice.

Must be served no later than 21 days before the trial.

55
Q

What can an admission made in response to a notice of admission be used for? By whom can it be used?

A

Only for the proceedings in which the notice to admit is served and only by the party who served the notice.

56
Q

Can a party amend or withdraw an admission made in response to a notice of admission?

A

Yes - but only with the permission of the court

57
Q

In what circumstances is a party deemed to admit the authenticity of a document?

A

If he does not serve notice that he wishes for the document to be proven at trial.

58
Q

By what date must a notice to prove a document be served?

A

Whichever is later of:

(a) the latest date for serving witness statements; or
(b) within 7 days of disclosure of the document

Civil Litigation 2.0 (26 decks)

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