Evidence Flashcards
(33 cards)
What is the legal burden of proof in civil proceedings?
Lies with C and each fact must be proved unless admitted by D
Breach of contract – C needs to prove that:
- A contract existed
- D broke the relevant terms
- C suffered loss because of D’s breach
When will the defendant have the legal burden of proof in civil proceedings?
1) Where D has been convicted of a relevant criminal offence, this then reverses the burden, meaning D must prove they should not have been convicted
- Common for driving offences, like careless driving, as it helps to prove negligence in civil proceedings
- C can include details of D’s conviction in the PoC and then D must argue they were wrongly convicted
2) Burden will also fall on D when they want to prove contributory negligence
- They must prove C’s failure to take care contributed to the damage suffered
3) They would also need to prove that C has not mitigated their loss if they argued this as a defence
What is the standard of proof in civil proceedings?
C must prove each fact on the balance of probabilities
- There must be a certainty of greater than 50%; more likely the case, than not
What is the general rule about witness evidence and how it must be given?
General rule is that any fact which a party wants to rely on, must be proved by oral evidence, but this is modified due to the amount of written evidence
In reality, how do witness statements modify the general rule about evidence?
If a party wishes to call a witness, they must serve a witness statement on the other parties
- This sets out all the facts which that witness would be allowed to give orally at trial
- Inadmissible or irrelevant material not included
No statement = can only speak with court’s permission (rare)
For intermediate track cases, the total length of all permitted witness statements and summaries cannot exceed 30 pages
What is a witness summary and when might this be used?
Where it is very difficult to obtain a witness statement (uncontactable or they cannot be persuaded), a party can apply to court without notice for an order to serve a written witness summary, containing:
- W’s name and address
- Evidence W can provide (if known); or
- Matters on which W would be questioned at trial (relevant disputed issues)
Part 32 of the CPR sets out the formalities that need to be followed when drafting a witness statement. What are some of the key ones?
- Headed with title of proceedings + details like name of W, number of statement and date in top right corner
- Opening paragraph – W’s address, occupation, if the statement is made as part of their employment or business + name of business and whether they are a party to proceedings
- Number all paragraphs, express all numbers as figures (5 people) and dates are in format 1 May 2025
- Statement should normally follow the chronological sequence of events
- Statement sets out the evidence that the individual wants to provide for the party calling them, so should be written in 1st person and in W’s own words
- W must indicate which comments are made from their own knowledge and which are based on information and belief, naming source if appropriate. Statement must state process of preparation (over phone/F2F etc)
- Attached documents are formally exhibited
- Verified by statement of truth – cannot be signed by a legal representative
How are non-English witness statements dealt with?
Draft in W’s own language, with date and details of translation included in statement
Should swear words be included in a witness statement is they are said habitually whilst the statement is being drafted?
If a witness habitually uses the same expression or swear words, these must be included in the WS, as otherwise their credibility might be undermined in cross-examination, if their answers come across with different language
When are witness statements usually exchanged?
Usually occurs simultaneously and usually a few weeks after disclosure and inspection
How are objections to the admissibility of content in a witness statement dealt with?
If, after exchanging witness statements, a party objects to the admissibility of material contained their opponent’s statements, they should notify the other party immediately and seek to resolve the dispute that way
- Failing that, raise the matter at any pre-trial review or at the beginning of the trial
How are witness statements used at trial?
After serving WS, W will usually be called to give oral evidence
Judge will have read all WSs before trial (part of trial bundle)
W will enter witness box, affirm or take the oath, be shown a copy of the statement and confirm the contents are true, which means it is assumed they ‘said’ everything from the witness box
- They are then subject to cross-examination
W cannot add to statement at trial without court’s permission
- Will only occur if there is a good reason why the evidence was not dealt with in the statement itself
What are affidavits?
Sworn statements of evidence, where the maker must swear or affirm before a solicitor, other than their own, or another authorised person, that the contents are true
Only necessary for freezing injunctions and search orders really
What are the starting points in relation to admissibility of witness evidence?
Starting point – any evidence included in WS or affidavits must be relevant
- Irrelevant material is not admissible
Evidence from a witness of fact is admissible when it relates to relevant facts
- Relevant facts are those in dispute, which must be proven by the party calling the witness
- Facts in dispute are those which aren’t admitted or are denied
How is opinion witness evidence regarded?
General rule – not admissible
Exceptions
1) Facts personally perceived – W can give a statement of opinion if made as a way of conveying relevant facts personally perceived by them
- Most relevant where a witness describes how fast a vehicle was going or when they state an individual is drunk, based on certain facts
- W cannot draw any conclusion from their evidence – the trial judge alone decides if W’s evidence means a certain element or elements of an issue is proven; this means they cannot say the car was going ‘too fast’ or at ‘excessive speed’ etc
2) Expert evidence – experts are allowed to give opinions in court
What is hearsay evidence and is it generally admissible?
Hearsay is:
1) A statement made outside court;
2) Which is repeated in court;
3) To prove the truth of the matter stated
- Must be yes to all the above to be hearsay
- If no to any, it may be relevant and admissible evidence though
The statement must be a relevant fact or admissible opinion and can be oral or written - will be admissible if this is met
Can be repeated in court in a document or by the witness (in WS or oral evidence)
The key aspect is that the words are being repeated to prove their truth
Can be first hand or multiple (can repeat what one person said or wrote, or information is relayed through more than one person before being recorded)
Give an example of hearsay and an example of something that wouldn’t be
1) A gives evidence that, after a road collision, B said ‘I didn’t see you.’ By repeating it in court, A is trying to show that B did not see their vehicle and that B was to blame for the accident
2) However, repeating something someone said that turned out to be untrue is not hearsay, but may be admissible
- Expert later determines a car was rebuilt after an accident years ago, but the car salesman assured the claimant that it had never been in an accident
- The claimant does not want to say that the salesman was correct, but does want to rely on their statement as an element of misrepresentation
What are the notice requirements for using hearsay evidence in civil proceedings?
1) If a party intends to call a witness who statement contains hearsay evidence, they need to serve the other party with the statement
1a) Opponent must decide to ask court to order that the original statement maker attends for cross-examination or serve notice of intention to attack credibility of hearsay evidence
- Can do both (if statement maker can’t attend, they will attack credibility)
2) If the party does not intend to call the witness, but wants to rely on the WS, it becomes a wholly hearsay statement
- When serving WS, party must inform the other parties that W is not being called to give oral evidence + reasons why - This is done by hearsay notice, served with WS
- Opponent can still ask court to order attendance or serve notice of intention to attack credibility
What are the consequences of failing to follow the hearsay notice requirements?
Failure to comply with notice requirements mean the weight given to it will be different or it may affect costs at end of trial
Hearsay would remain admissible
Hearsay is ‘second best’ evidence, as someone might have lied or the statement may contain an error (especially if repeated many times) and the trial judge cannot assess reliability of statement as easily, because the original statement maker is not present.
What will be considered when deciding what weight to attach to the hearsay evidence?
Trial judge will consider:
- (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?
When considering the weight to attach, there are statutory guidelines too and the court must have regard to all the circumstances, including:
- How reasonable/practicable it would have been to call statement maker as witness – must be a credible reason for the statement to have weight attached
- Was the original statement made contemporaneously with the events
- Is there multiple hearsay? - more risk of inaccuracy
- Whether anyone involved has a motive to conceal or misrepresent matters
- Whether original statement was edited or made in collaboration with another (collusion)
Give a summary of hearsay evidence
To be hearsay, there must be all 3 of:
- A statement made outside of court
- Repeated in court
- To prove the truth of the matter stated
Hearsay is admissible if:
- It is relevant fact or admissible opinion (accompanying facts personally perceived)
Need to follow notice requirements
- Opponent can ask court to make original statement maker to attend or they can attack the weight attached, using the guidelines
If it was reasonable for original statement maker to attend, little weight is likely to attach
How do the courts view expert evidence? Can the parties use as much expert evidence as they wish?
Court restricts the use of expert evidence to what is reasonably required to resolve the issues, which can range from having no expert evidence, limiting their evidence to written reports or directing that the parties must agree experts etc
Court will need to be satisfied that EE is necessary to decide an issue in dispute or assist the judge in doing so
- They will consider value of claim, likely costs and proportionality
Parties cannot call experts without permission – usually considered at directions stage, which might occur on allocation to track or at a CMC (depending on which track it is assigned to)
When a party asks for permission to rely on an expert, what information will they need to provide?
The parties will need to provide an estimate of the costs of the proposed EE, identify the field in which it is required and the issues to be addressed
Is another lawyer likely to be relied upon as an expert?
No, as the trial judge can interpret many legal elements, including commercial contracts for instance
