DR: Witness and Expert Evidence Flashcards
(32 cards)
What are the three main types of evidence in civil proceedings?
Documents, witness evidence (fact and expert), and real evidence
How does the court control evidence under CPR 32.1?
By directing which issues need evidence, the nature of evidence required, how it is presented, and by excluding or limiting evidence or cross-examination
What is the general rule for proving facts at trial under CPR 32.2(1)(a)?
Facts needing proof at trial must be proved by oral evidence, usually via witness statements that stand as evidence in chief
What is a witness statement and how is it used?
A written, signed statement containing all evidence a witness would give orally; exchanged before trial to save time, then read in court and the witness confirmed, cross-examined, and re-examined
What must happen if a witness statement is not served in time under CPR 32.10?
The witness may not be called to give oral evidence at trial unless the court gives permission after an application for relief from sanction
When can a party request an extension to serve witness statements without court approval?
By written agreement between parties for up to 28 days, provided it does not put a hearing at risk (CPR 28.4, 29.5)
What must a party do if an agreed extension affects a subsequent key date?
Apply to the court for extension under CPR 3 to avoid risk of non-approval at trial
Under what circumstance can a witness amplify or add new matters to a statement at trial?
With court permission (CPR 32.5(3)), if the amplification is not merely a late change of tack and does not prejudice the other party or the overriding objective
What is the rule for evidence at interim hearings under CPR 32.2(1)(b)?
Facts are proved by written evidence (witness statements), not oral evidence; cross-examination of that witness requires court permission (CPR 32.7)
What are the content requirements for a fact witness statement?
Must be in witness’s own words, cover facts supporting legal arguments, state information or belief for second-hand details, and end with a statement of truth (CPR 32.8, 32 PD 17–20)
When is opinion evidence admissible from a fact witness?
Only when stating perceived facts (Civil Evidence Act 1972 s 3(2)) or when qualified as an expert (expert evidence exception)
What are the consequences of signing a false witness statement of truth?
May face contempt of court proceedings under CPR 32.14(1)
When is evidence of fact required to be given by affidavit under CPR 32.15?
When a rule or court order so requires (e.g., applications for search orders or freezing injunctions), or if a party chooses to use an affidavit instead of a witness statement
How does an affidavit differ from a witness statement?
An affidavit is sworn on oath before an authorized person and includes a jurat and exhibit authentication, whereas a witness statement is verified by a statement of truth
What formal elements must an affidavit include?
A jurat signed by deponent and commissioner, deponent’s oath, exhibits labeled as “Exhibit [reference],” and commissioner’s printed name, qualification, and full address (CPR 32.16, 32 PD 2–16)
Define hearsay evidence under the Civil Evidence Act 1995.
An out-of-court oral or written statement adduced to prove the truth of its contents
Is hearsay evidence admissible in civil proceedings?
Yes—subject to CEA 1995 and CPR 33 procedural safeguards regarding notice and weight
When must a party give notice of intention to rely on hearsay at trial under CPR 33.2?
No notice is required if hearsay is in a witness statement of someone giving oral evidence; if witness not giving oral evidence, inform other party with reasons; in all other cases, give formal notice identifying the hearsay and reasons for not calling the maker
What can a receiving party do upon hearing a notice of intention to rely on hearsay?
Request particulars of the hearsay (CEA s 2), call the absent witness for cross-examination (CEA s 3), challenge the weight of the hearsay (CEA s 4), or attack the credibility of the absent witness (CEA s 5)
What notice is required for plans, photographs, or models used as evidence?
Formal notice under CPR 33.6 identifying the item and its intended use or else it will not be receivable at trial
How are criminal convictions used as evidence in civil proceedings?
Under CEA 1968 s 11, a current conviction is admissible to prove the offence; rebutting evidence on balance of probabilities is allowed to prove innocence
What are the endorsement requirements for a trial witness statement under CPR 32 PD 17–20?
Include heading (court, claim number, parties), party relying, witness initial and name, statement number, exhibit references, signing date, and date of translation if needed
What additional paragraphs must trial witness statements for interim hearings include?
A paragraph identifying purpose of statement (e.g., opposing application) and a paragraph stating what the witness asks the court to do (e.g., dismiss the application)
For Business and Property Courts, what extra confirmations are required in trial witness statements?
Confirmation of documents referred to, witness understanding that statement is not advocacy, and legal representative’s confirmation that rules have been explained and complied with (57A PD)
