SGS 6: Evidence: Witness of Fact & Expert Evidence

Question 1

Explain the admissibility of evidence generally?

Answer 1

All evidence that is relevant to the facts is admissible in civil proceedings. But, there are special rules governing:
Š Opinion evidence
Š Evidence which is privileged
Š Hearsay evidence

Question 2

What is the exception related to opinion evidence?

Answer 2

• Exceptions:
  o Perceived facts – culmination of perceptions creating a fact – s3(2) CEA 1972
  o Expert opinion – must be suitably qualified and experienced – s3(1) CEA 1972

Question 3

What is the exception of admissibility related to Privilege?

Answer 3

• The general rule is that Privileged evidence is not admissible at trial

Question 4

What is the general rule of admissibility of hearsay evidence?

Answer 4

9 All hearsay evidence is admissible in civil proceedings under s1 CEA 1995,
9 Treated with caution by the court
9 Because is inherently less reliable than direct / oral/ documentary/ real evidence.

• This is an oral or written statement made out of court, being adduced in court to prove the truth of the matter stated – CPR 33.1

Question 5

For hearsay evidence, explain the notice of intention to rely on hearsay evidence?

Answer 5

• S2 CEA 1995
• CPR 33.2 - states how the notice should be given. The form depends on how evidence will be given to court.

CPR 33.2(2): Not giving oral evidence at trial
CPR 33.2(3): IS giving oral evidence at trial

Question 6

What happens if not is not given?

Answer 6

• Not rendered inadmissible
• Affects the weight that the court will attach to evidence
• And any costs orders relating to it

Question 7

What are the 4 options if the notice is received, to the recipient?

Answer 7

Request particulars : As are reasonable and practicable for the purpose of enabling him to deal with matters arising from it being hearsay- S2 CEA

Call for cross examination: CPR 33.4(1)
S3 CEA 1995

Attack credibility of absent witness at trial
show that absent witness made previous inconsistent / contradictory statements - S5 CEA
CPR 33.5

Challenge weight of evidence - S4 CEA

Question 8

Which statute are the factors taken into account when deciding on the weight to be placed on hearsay evidence?

Answer 8

• This is all in S4 CEA: there are 6 factors
  a. Would it have been reasonable & practicable for maker of original statement to be witness?
  b. Whether original statement was made contemporaneously with occurrence of the matter stated.
  c. Whether evidence involves multiple hearsay e.g. “A friend of a friend of a friend said…”
  d. Whether any person involved had any motive to conceal or misrepresent matters.
  e. Whether the original statement was an edited account or made in collaboration with another or for a particular purpose.
  f. Whether the circumstances suggest an attempt to prevent proper evaluation of its weight.

Question 9

Explain the courts approach to evidence at trial and the CPR that this is found under?

Answer 9

• CPR 32, 32.1, 32.1(2), 32.3(3) - highlight all in the same colour.
• 32 = gives the court the power to control evidence
• 32.1 = court can issue directions
• 32.2(3) = steps to take to actually give these directions.

Question 10

What are the rules surrounding witness of fact and which CPR is this found in?

Answer 10

• CPR 32.2(1)
• The court normally directs that it should be given orally at trial
• But in written form at other hearing.

Question 11

What is a witness statement? What does it contain, and which CPR governs this?

Answer 11

• Contains the evidence that the person giving the statement would be allowed to give orally at trial.
• CPR 32.4
• It is usually necessary requirement before the witness can give oral evidence at trial.

Question 12

Explain the steps in preparing witness statements?

Answer 12

1: Purpose, Oral evidence = direct evidence.
WS is prior notice of what witness will say. CPR 32.4(1)

2 - Content: Evidence of facts that support:
Duty / breach / causation / loss in the witnesses own words

3 - Form: Must comply w/ requirements in
Ø CPR 32.8
Ø 32 PD 17-20

4 - Additional requirements

(1) Make it clear which are the witness’ own knowledge & which are matters of ‘information or belief’
(2) Refer to any exhibits which should be verified & kept separate from statement 32 PD 18.3 – 18.6
(3) Contain a statement of truth signed by witness and drafted in first person

5 - Do not include:

Do not anticipate witness’ own knowledge
& which are matters of ‘information and belief’

6: Signature

If witness does not sign, can still be used - apply to use witness summary: CPR 32.9
Issue witness summons, CPR 34

To ensure the witness attends

7

PCR issues

Question 13

When is a witness summary used?

Answer 13

• When a critical witness will not give a statement.
• CPR 32.9(1): party who is required to serve witness statement for use at trial, but is unable to obtain one
• May apply without notice for permission to serve a witness summary instead.

Question 14

What does the witness statement actually contain?

Answer 14

• Witness name and address
• Evidence which would otherwise have been included in witness statement
• Or the areas about which you propose to question the witness at trial

Question 15

What happens if a critical witness dies after obtaining statement?

Answer 15

• Can still use evidence
• Under CPR 32.5(1)
• But this will still be hearsay

Question 16

What is the procedure for witness summary?

Answer 16

• Deemed service = CPR 6.26, the second business day after posting.
• Case management: CPR 32.4(2)
  • Identify / limit factual evidence issues
  • Identify witness for calling / read
  • Limit the length / format of evidence

Question 17

How does exchange of witness statements work?

Answer 17

• Can be done simultaneously
• Comply w/ direction given for exchange of witness statement.
• CPR 32.10: 1 party fail to serve witness statement, Witness may not be called to give oral evidence unless court gives permission.
• CPR 3.8(4): Parties could agree provision up to 28 days, as long as it does NOT interfere w/ deadline

Question 18

Explain how experts can give evidence?

Answer 18

• They can give opinion evidence but subject to CPR 35, and 35 PD

Question 19

What is the Role of the Expert? What is their duty?

Answer 19

• To assist court in areas outside its expertise which need instruction for judgement of the case.
• Duty - to help court on matters within his / her own expertise. This overrides any obligation to the party instructing.

Question 20

How is expert evidence used?

Answer 20

• Expert can be instructed without court permission.

- But to call expert to trial - only with court permission. - CPR 35.4(1)

Question 21

What is the form of evidence for expert evidence?

Answer 21

• Written. Unless court directs otherwise - CPR 35.5(1)

- Must be exchanged - if not then only used w/ court permission - CPR 35.13

Question 22

Explain the details of expert reports?

Answer 22

• Must be in prescribed form
• Details are in PD 35 Para 3
• Must contain statement of truth

Question 23

What is the duty of the court w/ expert evidence?

Answer 23

• To restrict expert evidence
• To that which is reasonably required to resolve the proceedings.
• CPR 35.1

Question 24

Explain the rules surrounding Single Joint Experts?

Answer 24

• CPR 35.7 & 35.8
• Court has power to only permit a single joint expert
• Pre action protocols encourage this use where appropriate
• Most common in fast-track and small-track cases.
  • Should be transparency in communication - each party is entitled to instruct. But copy of instructions must be sent to other instructing party - CPR 35.8(2)

Question 25

What are the key points for the experts from the 2014 Guidance?

Answer 25

· Should have regard to the objectives underpinning PA protocols: (1) Exchange of info early, (2) Minimize the scope of litigation and (3) Support efficient management of proceedings.
· Experts must provide independent opinions
· Must provide an estimate of costs for each stage of proceedings
· Those instructing the experts should seek to agree the instructions for the experts
· Where basis of instructions differs from that of another expert, he should inform those instructing him
· Report should contain a statement that requirements in CPR 35 & PD 35 have been complied with
· Report should contain a re-statement that the experts recognize their duties

Question 26

Which questions should be asked to experts?

Answer 26

CPR 35.6

Once expert reports have been exchanged, a party can put written questions to the other party’s expert or to the SJE – can only be put once. Answers are treated as being part of report.
9 Must be submitted within 28 days of service of expert report & copy must be sent to expert’s solicitors
9 No time limit for expert to reply, but court may order. Consider the consequence of no-reply from the expert under CPR 35.6(4)(b)

Question 27

Which questions can be asked BY experts?

Answer 27

To help them to carry out their task. The court will then issue directions in response. Expert must:

(i) Provide to instructing party a copy of proposed request for directions at least 7 days before filing it at court
(ii) Provide a copy to all other parties at least 4 days before filing at court.

Question 28

Explain the discussions that can take place between experts?

Answer 28

CPR 35.12

Court can direct that experts discuss the various issues in dispute. Saves time & costs at trial. Court can even dictate agenda for the meeting & require a joint statement after it.
† Purpose – Para 69 of The Guidance – to identify issues & determine what is/is not agreed on, and reasons for any disagreement. Not to resolve proceedings.
† Without Prejudice – CPR 35.12(4) & Para 76 of The Guidance
† Joint Statement – Should follow guidelines in Para 77 of The Guidance.
† Solicitor Attendance – Only if all parties agree or court so orders. If they attend, shouldn’t intervene except to answer questions put to them by experts or to advise about the law.
o Advantages: Prevent browbeating of expert; assist on law & facts; encourage settlement.
o Disadvantages: Increased costs; inhibits full & frank discussion.
† Letter of Instruction & Expert’s Report – Not privileged from inspection CPR 35.10(4) .: important to take care when drafting/providing instructions to client’s expert.
† Changing Opinions – Must be communicated to other parties without delay & court should also be informed where appropriate – 35 PD 2.5.
9 In light of the change, if a party decides it wants a different expert, it requires the court’s permission – CPR 35.4 – will only be allowed if first report is disclosed (consider cost sanctions + loss of credibility)

Question 29

Are agreements that are reached by experts binding?

Answer 29

• Do not bind parties unless they AGREE to be bound
• Under CPR 35.12(5)
• Party might try to argue that in reaching an agreement an expert stepped outside his expertise / acting incompetently.
• Agreement should not be accepted by the court / party should adduce further expert evidence.