Hearsay Evidence Flashcards
(35 cards)
What is hearsay evidence in civil proceedings?
Hearsay evidence is a statement that:
- Was made outside of court.
- Is repeated in court.
- Is relied upon to prove the truth of the matter stated.
What time limits and procedural steps apply to serving witness statements?
Time Limit: Witness statements must be served on all parties before trial (deadline set by the court).
Consequence of Non-Compliance: Witnesses can only testify with court permission.
What are the rules for page limits in witness statements?
Intermediate Track Cases: Witness statements and summaries must not exceed 30 pages. Expert reports cannot exceed 20 pages
What is the difference between a witness statement and a witness summary?
What may a witness summary include?
Witness Statement
- A signed document setting out the actual evidence the witness will give at trial.
- Must be in the witness’s own words, signed with a statement of truth.
- Used when the party can obtain the witness’s evidence in writing.
Witness Summary
- A document summarising the expected evidence of a witness when a full statement can’t be obtained (e.g. witness unavailable or uncooperative).
- Also signed (but by a legal representative) and includes a statement of truth.
- Used when the party cannot get a full witness statement despite best efforts.
What may a witness summary include:
- What the party believes the witness would say based on prior conversations or documents, or
- The issues on which the witness is expected to give evidence.
- So the witness might not have given any evidence yet — the summary reflects the party’s expectation of their evidence.
When are witness summaries used, and what must they include?
Witness summaries are used when a full witness statement is not possible due to:
a. Witness unavailability (e.g., abroad or uncontactable).
b. Witness reluctance (e.g., fear of reprisal from employers).
Application: Parties must apply for a court order (without notice) to serve a witness summary,instead of a full witness statement, if the witness is unavailable.
Content:
Witness summary must include:
○ Witness’s name and address.
○ Known evidence the witness could provide, or the issues on which they would be questioned at trial.
What are the notice requirements for hearsay evidence?
Timing:
- Hearsay notice must accompany the witness statement if the witness is NOT giving oral evidence.
- Hearsay notice needs to accompany the witness statement, and explain why oral evidence is not being given and why reliance is placed solely on the statement made by the original statement maker.
Content:
- Must state that the witness will not give oral evidence and why reliance is placed solely on their statement.
How is hearsay evidence weighed under s.4 Civil Evidence Act 1995?
- Reasonability of calling the original statement maker.
- Contemporaneousness of the statement.
- Risk of multiple hearsay inaccuracies.
- Adequacy of notice given to the opposing party.
What is the rule for simultaneous exchange of witness statements?
Purpose: Prevent one party gaining an advantage.
Timing: Usually occurs after document disclosure/inspection.
When does the burden of proof shift in civil cases?
General Rule: Claimants bear the burden. Must prove their case on the balance of probabilities i.e. more than 50% likelihood
Exceptions:
- s.11 Civil Evidence Act 1968: Defendant convicted of a relevant criminal offence must disprove their guilt.
- Contributory Negligence: Defendants must prove the claimant’s lack of reasonable care contributed to damage.
What is the standard of proof in civil cases?
Balance of probabilities: Claimant’s case must be >50% likely to be true.
What are the key procedural steps for using expert evidence?
- Permission Required: Court permission is mandatory (typically during case management).
- Joint Experts: Court may direct parties to appoint a single joint expert (SJE) in fast-track cases.
- Exchange of Reports: Deadlines for report exchange set by court directions.
- Written Questions: Parties can ask written questions within 28 days of service of the experts report.
What are the admissibility rules for expert evidence under s.3 Civil Evidence Act 1972?
Expert opinions on relevant matters are admissible, unlike opinion evidence from factual witnesses.
What are the (4) requirements for expert reports under CPR Part 35?
Reports must include:
- Expert’s qualifications.
- Facts, tests, and materials relied upon.
- Range of opinions and reasons for preference.
- Statement of truth confirming compliance with CPR Part 35.
What procedural steps must be followed for hearsay evidence in civil trials?
- Serve the witness statement containing hearsay evidence.
- Include a hearsay notice if the witness will NOT attend.
- Opposing party may:
* Request cross-examination of the statement maker for the hearsay evidence (i.e., the actual witness- the person whose evidence is in the witness statement).
* Challenge the credibility of the hearsay evidence.
What is the role/powers the court has in controlling expert evidence?
Powers:
- Refuse expert evidence altogether.
- Limit the number of experts or restrict their involvement to specific issues.
- Require parties to agree on a single joint expert (SJE).
- Restrict expert evidence to written reports only.
What are the requirements for exchanging expert reports?
- Deadline: Set by court directions.
- Written Questions: Must be sent within 28 days of receiving the report.
- Discussions: Experts (for each side) may be ordered to hold discussions to identify agreements/disagreements.
- Solicitors for both parties are not invited/included/involved in these discussions.
- Joint Statement: Experts produce a joint statement outlining agreed and disputed issues.
What happens if a party fails to comply with CPR Part 35 for expert reports?
Consequences include:
* Exclusion of the evidence in serious breaches.
Reduced weight given to the evidence.
What procedural rules apply to affidavits?
- Affidavits are sworn or affirmed statements of evidence.
- They are used for specific applications, e.g., freezing injunctions or search orders.
- Affidavits must be signed in the presence of a solicitor or authorised person.
What are the rules for oral evidence in civil trials?
- Witnesses must give evidence orally unless otherwise directed by the court.
- Witness statements typically stand as evidence-in-chief.
- Witnesses must confirm the truth of their statements under oath.
- Court permission is required for additional oral evidence.
5.Witnesses will be cross examined on their witness statments
When are Single Joint Experts (SJEs) used, and what are their benefits?
Use: Typically in fast-track cases where proportionality and cost-effectiveness are key.
Benefits:
1. Avoids conflicting expert opinions.
2. Reduces costs by splitting fees between parties
3. Streamlines evidence for simpler cases.
What is the procedure for hearsay evidence if the witness is unavailable?
- Hearsay Notice: If the witness is unavailable then hearsay notice MUST be served with the witness statement.
- Reasons: Notice must explain why the witness cannot attend (e.g., illness, death).
- Opposing Party’s Options:
* Request court permission to cross-examine the original statement maker.
* Challenge the credibility of the hearsay evidence and the credibility of the original witness.
* Challenge the weight the court gives to hearsay evidence
What factors determine the weight of hearsay evidence under s.4 Civil Evidence Act 1995 (6)?
- Whether it would have been possible to call the original witness
- Why the original witness cannot attend
- How far the statement was made contemporaneously with the event
- Any motive the maker might have had to misrepresent the facts
- Whether the statement was edited or otherwise prepared for proceedings
- Edited account: If a statement has been modified to omit certain details or to present events in a particular light, it may be considered less reliable.
- Collaboration: Statements made jointly with others, especially if those others have a vested interest in the case, might be viewed with caution.
- Prepared for a particular purpose: Statements created specifically for litigation purposes, rather than as spontaneous accounts, may carry less weight.
- Multiple hearsay (i.e. second-hand hearsay is treated more cautiously)
What are the key procedural steps for using opinion evidence from witnesses of fact?
- General Rule: Opinion evidence is not admissible from witnesses of fact unless it relates to observed facts (s.3(2) Civil Evidence Act 1972).
- Exceptions:
- A witness can state that a car was travelling “fast” based on their observation.
- A witness may comment on someone appearing “intoxicated.”
What is the procedure in a civil trial? (6)
1. Opening Statements (optional)
* Usually made by the claimant’s advocate to outline the case
* Defendant may respond or wait until their evidence
2. Claimant’s Case
* Claimant gives evidence (examination-in-chief)
* Cross-examination by defendant
* Re-examination (if necessary)
* Claimant’s witnesses follow the same sequence
3. Defendant’s Case
* Defendant gives evidence (examination-in-chief)
* Cross-examination by claimant
* Re-examination
* Defence witnesses follow the same sequence
4.Closing Submissions
* Claimant goes first, then defendant
* Each side summarises evidence and legal arguments
5. Judgment
* Given immediately or reserved
* Judge gives decision on liability and remedies
6. Costs Hearing
* Court hears submissions on costs
* Makes an appropriate costs order
