Evidence Flashcards
(22 cards)
Hearsay
- Statement made outside of court
- repeated inside of court
- repeated to prove matter stated
Want judge to make a decision based on the statement
Hearsay treatment
Admissible but treated carefully - must give notice
If intend to call witness: deemed notice on service of statement
if do not intend to call: must serve hearsay notice
On receipt of notice, OS can within 14 days
- apply to challenge credibility
- apply for cross examination
- challenge weight
Expert evidence treatment
May not rely on expert report or oral expert unless obtain court permission.
Court has a duty to restrict expert evidence to that reasonably required to solve issues in dispute (SJE unless good reason)
Expert will not give oral evidence unless interests of justice or multi track
Duties of experts
- Ultimate duty to the court
- Unbiased opinion within area of expertise
SJE report options
If you like: notice to admit facts
If you do not like
- written questions within 28 days
- request court allow you to appoint own exprt
- consider settlement
Treatment of letter of instructions to expert
Not privileged byt court will not permit inspection unless grounds that gave expert incomplete or inaccurate instructions
Draft report is privileged until exchange
exchange of witness statement rules
Exchange by deadline
Agree up to 28 day extension
If do not meet deadline, cannot call witness unless relief from sanctions
Advice to client about disclosure
- start saving all documents
- do not create documents unecessarily
Disclosure obligation
No automatic disclosure obligation
Duty continues until proceedings concluded - shoudl disclose if later discovered
Orders for dislcosure
Court may make any order it deems appropriate
Standard Disclosure unless not appropriate
Disclosure process
Complete disclosure list
exchange list
request docs wish to inspect within 7 days
Standard disclosure test
- Document
- Within or was in control
- rely, supports case, adverse to case, supports anothe ror adverse to another
reasonable search
parts of dislcosure list
Part 1: disclose and permit inspection (i.e. redacted version)
Part 2: disclose but refuse inspection (privileged, disproportionate )
Part 3: Had but no longer have
What if unhappy with disclosure?
App for specific disclosure
write to OS first, if refuse:
app to court. Court may permit - should permit if satisfies disclosure. May permit if allows to build case
When will court make an order for non-party disclosure?
- Likely to support case / adverse to OS case
- Necessary to dispose fairly or save costs
When will court permit NPO (Part 8)
- Ultimate wrongdoer
- Necessary to bring action against UW (no other way of finding out identitiy)
- D is more than mere witness + able to identify UW
- Necesary and proportionate
When will court permit pre-action disclosure
- likely to be a party to proceedings
- Meets definition of standard disclosure
- Desirable to (1) dispose fairly; 2) avoid proceedings 3) save costs
Legal advice privilege
- Confidential communication
- between lawyer and client
- dominant purpose of obtainng legal advice
Litigation privilege
- Confidential communication
- Between lawyer, client or 3rd party
- Dominant purpose of legal advice, evidence or information
- Litigation reasonably in prospect
Without privilege
Genuine attempt to settle
Waiver of priivlege
Agreement
Serve doc
mention in witness statement
Redacted part if not wholly unrelated to rest of document and not a clear and distinct part
