Evidence

Question 1

Briefly explain the exception to the rule that the legal burden of proof lies with the defendant.

Answer 1

Where D in civil proceedings has been convicted of a relevant criminal offence, burden of proof is reversed. D therefore has to prove on balance of probabilities they are not liable.

Question 2

What is the general rule with regards to the legal burden of proof in civil cases?

Answer 2

It rests with the claimant and each fact asserted must be proved unless admitted by the defendant.

Question 3

Aside from the associated criminal offence exception, give some situations where the defendant might bare a burden of proof in litigation proceedings.

Answer 3

Where D is alleging contributory negligence (ie they must prove C’s failure to take care contributed to the damage suffered).

Question 4

What is the standard of proof in civil litigation proceedings?

Answer 4

The fact/ assertion in question must be proved on the balance of probabilities.

Judge must be satisfied c’s version of events is more likely to be true than not.

Question 5

Give the general rule with regards to witness statements.

Answer 5

Any fact a party intends to rely on must be proved at trial by oral evidence.

This rule has however been modified to allow a lot of written evidence submissions.

Question 6

Explain the provision of part 32 of the CivilPR.

Answer 6

Where party wishes to call a witness, a witness statement must be served on the other parties setting out facts which that witness is allowed to give in oral evidence at trial.

Inadmissible/ irrelevant material should not be included in this statement - should reflect what witness would be allowed to say at trial.

Question 7

What happens if a witness statement is not served on other parties?

Answer 7

That witness can only speak/give evidence at trial with the permission of the court.

Question 8

What is a witness summary and when is it used?

Answer 8

Used when witness cannot be traced/ contacted/ persuaded to give evidence.

Question 9

What should a witness summary include?

Answer 9

The summary will include witness name, address, summary of evidence the witness can provide (if it is known) and the matters which the witness would have been questioned on at trial (usually the relevant disputed issues).

Question 10

Is permission required to rely on a witness summary?

Answer 10

Yes - permission from court is required.

Party seeking it allies without notice.

Question 11

Are witness summaries treated as equal evidence to witness statements given in oral evidence or in a written witness statement?

Answer 11

No. They are less reliable but better than nothing.

Question 12

Explain the required form and content of a witness statement in order for it to be admissible in the eyes of the court.

Answer 12

1) Statement should be headed with title of proceedings and details (eg name, number of the statement and date in top right hand corner).

2) Opening paragraph should be witness address, occupation, and whether statement is made in course of their employment/ business (and if so the name of the business and whether they are a party to proceedings).

3) Paragraphs must be numbered, and all number including dates must be in figures (not words).

4) Statement should follow the chronological sequence of events and be written in the first person (ie from the witnesses point of view).

5) Witness must indicate which statements are made from their knowledge, and which are based on info/beliefs. They must also set out how the statement was prepared (eg face to face, over phone with solicitor etc).

6) It must be verified with a statement of truth.

Question 13

What is the function of a written witness statement?

Answer 13

Sets out evidence the individual is putting forward.

9 out of 10 times acts as examination in chief for that witness (unless permission granted by the court to ask them further questions before the cross examination).

Question 14

under practice direction 32 para 20.2, what is the wording a statement of truth should take on a witness statement?

Answer 14

I believe that the facts stated in this witness statement are true. I understand that
proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Question 15

Can a witness statement be set out in a different language (where the witness does not speak English)?

Answer 15

Yes but a translation and date must be contained within the statement as well.

Question 16

When are witness statements typically exchanged between parties?

Answer 16

In most cases they are exchanged a few weeks after disclosure and inspection of the documents (but will vary dependant on complexity of the matter).

Question 17

Should a witness statement be in first person and in the witness’ own language?

Answer 17

Yes (translation in English should also be included).

Question 18

Explain how witness statements are used at trial.

Answer 18

Witness called and asked to affirm or take oath that statement is true.

Unless permitted by the judge, the examination in chief will not question them. They will instead be cross-examined straight away by the opposing counsel.

Witness should not be adding anything to their statement when questioned orally, unless the court gives leave to do so.

Question 19

Give an example of situation where the court may permit the witness to add to their statement (orally at trial).

Answer 19

Where a new relevant event has arisen after the statement was served.

Question 20

When may an affidavit be necessary during litigation proceedings.

Answer 20

Largely been replaced by statement of truth. in witness statements.

Now only necessary to use affidavit in rare cases (such as applications for freezing injunctions or search orders).

Question 21

Can a witness statement refer to an expert report/ adduce expert evidence?

Answer 21

No.

Only expert witnesses can do so.

Question 22

Explain the ‘relevance’ rule for witness statements in civil proceedings.

Answer 22

• Evidence included in the statement must be relevant (irrelevant evidence is inadmissible).
• Evidence from a witness is admissible when it addresses relevant facts (ie those facts in dispute).

Question 23

Explain the general rule that ‘opinion evidence’ is not admissible.

Answer 23

Usually inadmissible.

Function of witness is to give evidence of the relevant facts, allowing a court to draw conclusion.

Sometimes fact and opinion cannot be separated, and may be admissible when this is the case.

Question 24

Explain the facts personally perceived expiation to the rule that opinion evidence is inadmissible.

Answer 24

• s3(2) Civil Evidence Act 1972 states witnesses may give statement of opinion if made as a way of conveying relevant facts perceived by them personally. If this is satisfied the evidence will be admissible.
• Witness cannot draw conclusions from their evidence.

Question 25

How is hearsay evidence defined in the civil evidence act?

Answer 25

‘A statement made outside court which is repeated in court to prove the truth of the matter stated’.

The statement must be a relevant fact or an admissible opinion.

It can be oral or written, and can be repeated in court by document or by the witness (either in their statement or orally at trial).

Question 26

Explain the expert evidence exception to the rule opinion evidence is inadmissible.

Answer 26

Experts are permitted to express opinions in their witness statements and in court, as their expert opinion is often useful (ie the whole point of their statement).

They should not however assume the role of an advocate.

Question 27

Can hearsay evidence be used in civil litigation?

Answer 27

S1(1) of CEA 1995 provides hearsay evidence CAN be admissible, subject to notice requirements.

Question 28

Explain the notice requirements for the use of hearsay evidence.

Answer 28

Notice requirements are as follows:

1) If the party intends to call witness whose statement contains hearsay evidence, they need to serve the other party with the statement;

2) Opponent must decide whether to ask court to order that the maker of the statement attend trial for cross-examination, or whether they wish to serve notice of intention to attack the credibility of the hearsay evidence.

3) If party does not propose to call the witness to give oral evidence, but wants to rely on witness statement itself, the whole statement becomes hearsay.This would limit the opponents options as they can’t cross-examine. The opponent must be given advanced warning of this.

Question 29

Summarise the action a party intending to rely on hearsay evidence should take when serving the witness statement (where the person making the statement is not going to be attending the trial).

Answer 29

They must inform the other parties that the witness is not being called to give oral evidence, and explain the reasons why.

This is called hearsay notice and should be served at the same time as the witness statement.

Question 30

What are the consequences of failing to comply with the notice requirements for the admission of hearsay evidence?

Answer 30

It will still be admissible, but the failure to give notice will be taken into account when assessing the weight of the evidence (and when making a costs order at the end of the trial).

Question 31

List the initial considerations the judge will make when considering the validity of hearsay evidence.

Answer 31

(a) What issue, if any, does the hearsay evidence address?
(b) How important is that issue in the case?
(c) What other evidence is available on the same issue?
(d) Is the hearsay evidence more probative than any other evidence the party could obtain through reasonable efforts?

Question 32

List the statutory safeguards available to the opponent to challenge the weight given to the hearsay evidence presented.

Answer 32

(a) Whether it would have been reasonable and practicable for the party adducing the
evidence to have called the person who made the original statement as a witness.
Only if the reason is a credible one, such as the person being dead or abroad and not
contactable, is the statement likely be given some weight; otherwise, why not call the
person to give oral evidence?

(b) Whether the original statement was made contemporaneously with the events in question, so that the facts referred to in it are fresh in the memory of the person making it. A note made of a car registration number immediately after the car drives off will generally be more reliable than one made the next day, week or month.

(c) Whether the evidence involves multiple hearsay as there is always the danger of
mishearing, exaggeration and general inaccuracy through repetition.

(d) Whether any person involved had any motive to conceal or misrepresent matters, for example an employee who makes the statement with a view to pleasing their employer.

(e) Whether the original statement was edited, or was made in collaboration with someone else, as this may suggest collusion, for instance.

(f) Whether the circumstances suggest an attempt to prevent proper evaluation of the weight of the evidence, perhaps because notice was given so late that the other party did not have a fair opportunity to respond to it.

Question 33

List the controls the courts can place on expert evidence.

Answer 33

Courts can restrict the use of expert evidence in any of the ways below:

1) refusal to allow any expert evidence;
2) limiting number of experts (generally or in relation to a specific disputes issue);
3) directing the parties must agree on the experts used;
4) limiting expert evidence on written reports.

Question 34

When will the court allow expert evidence to be used?

Answer 34

If court considers it necessary to decide an issue in dispute/ to assist judge.

Factors taken into account: - value of the claim/ proportionality/likely costs.

Question 35

Can a party call an expert without obtaining prior permission from the court?

Answer 35

No.

Question 36

What information will the judge require in relation to the experts being proposed for use?

Answer 36

1) names of the experts (if possible);
2) field of expertise;
3) info on expert’s knowledge and experience to ensure they are suitable to give the evidence; and
4) Issues the expert will address.

Question 37

Explain the duty of an expert witness (as set out in part 35 of their CivilPR).

Answer 37

Duty is to assist court by providing objective, unbiased opinions on matters within their own expertise. Even though they are instructed by one of the parties, they have primary overriding duty to the court.

DO NOT assume the role of an advocate and therefore have no duty to the party who has instructed them.

They are subject to usual implied terms such as exercising reasonable care and skill, which must be upheld when they are drafting their report/ giving evidence orally.

Question 38

Explain the provision of s3(1) of the Civil Evidence Act 1972.

Answer 38

It states where a person is called as an expert witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible evidence.

Question 39

When might the court see fit to appoint a single joint expert (SJE)?

Answer 39

Both parties submit expert evidence on particular issue, court may direct only one expert is necessary.

Question 40

What factors will court consider when deciding whether separate experts or SJE is necessary?

Answer 40

1) Is it proportionate to have two separate experts for each party on the particular issue;

2) Whether instructing an SJE is going to assist in resolving the issue more quickly and makes things more cost effective; and

3) Whether there is likely to be a range of differing expert opinions on the particular issue.

Question 41

Who chooses the SJE?

Answer 41

If the parties cannot agree on the SJE, court selects an expert from a list prepared by the parties.

Question 42

In which claims track is an SJE most likely to be used?

Answer 42

On the fast track and the cost of the expert report will be shares equally by the parties.

Question 43

How is expert evidence usually given in the fact track?

Answer 43

The evidence will usually be a written submission made by an SJE.

Expert not usually permitted to give oral evidence.

Question 44

Which factors may make the court lean towards separate experts being appointed?

Answer 44

Usually for cases in multi track which are:

1) complex;
2) for a high value of money; and
3) of particular importance to the parties

Question 45

Explain the procedure for putting together, exchanging and serving the separate expert reports in the multi track.

Answer 45

1) Exchange of expert reports - deadline will usually be imposed for the exchange of expert reports;

2) Questions - each party may within 28 days , put written questions to the opposing expert for clarification. Experts answers will be treated as part of the report.

3) Discussion - court may order a discussion between the experts (usually in the absence of the parties and legal representatives), and the contents of the discussion will not be referred to at trial unless the parties agree.

4) Written joint statement - following the discussion, written joint statement will be prepared for the court and signed by experts stating the issues on which they agree/ disagree (and reasons as to why). Copies should be issued to the parties.

5) Oral Evidence - judge decides whether expert may give evidence at trial. there is a presumption court will rely on written statements, but experts are commonly called to give evidence in the multi track.

Question 46

Once expert reports are exchanged, how long does the other party have to challenge/ ask questions of clarification?

Answer 46

28 days from date of exchange.

Question 47

What is the purpose of the discussion between separate experts (which the court will likely order)?

Answer 47

Purpose is to narrow down the issues, and identify:

1) extent of agreement between them;
2) points of disagreement and reasons for the disagreements;
3) what action may be taken to resolve the disagreements; and
4) any further material issues not yet raised, and the extent to which these are agreed.

Question 48

Does an expert’s report need to be verified with a statement of truth?

Answer 48

Yes.

Question 49

List the formalities which must be complied with in relation to the experts report.

Answer 49

In accordance with part 35 of the civil procedure rules, the expert report must:

1) Be addressed to the court.
2) Detail the experts’ qualifications.
3) Give details of literature (or other sources) expert has relied upon.
4) Statement containing substance of all facts and instructions.
5) State who carried our examinations, measurements, tests or experiments, their qualifications and whether the expert supervised these tests.
6) Where there is a range of opinion, summarise and give reasons for the opinion given by the expert.
7) Include a summary of conclusions reached; and
8) Contain statement that expert understands his duty to the court and has complied with this (and is aware of the guidance in part 35 CivilPR).

Question 50

What is the effect of an expert failing to comply with part 35 of the regulations?

Answer 50

If a serious breach, the party may not be allowed to rely on it.

Less serious breach = the judge may give less weight to the report.

Question 51

Are instructions to an expert privileged?

Answer 51

No.

The court can demand to see the instructions given to ensure no pressure/ influence was put on the expert which has influenced their decision in any way.