Syllabus Area 19 - Evidence of Fact

Question 1

What power does the court have to control evidence (what can be ordered)?

Answer 1

The court may control evidence through giving directions. The directions can be issues which require evidence, the nature of the evidence, the way it is presented, evidence to be excluded and limiting cross examination on evidence.

Question 2

What is the general rule regarding evidence of witnesses?

Answer 2

Evidence will usually be given orally by witnesses at trial BUT any other hearing, it will be given written.

Question 3

What directions can the court make as to evidence of witnesses?

Answer 3

identifying/limiting issues to factual evidence, identifying witnesses to be called/read out, limiting the length or format of witness statements.

Question 4

What other form can evidence of witnesses be given?

Answer 4

Through a video link.

Question 5

What can parties rely upon in trials in terms of evidence?

Answer 5

Their witness statement or application notice as long as it is verified by a statement of truth.

Question 6

Who can order cross examination and what order can be made for cross examination?

Answer 6

At any hearing other than the trial, ANY party can apply to court in writing to cross examine a witness.

Question 7

What happens if a witness does not turn up for cross examination?

Answer 7

Their evidence may not be used.

Question 8

What must a witness statement have?

Answer 8

A verified statement of truth.

Question 9

What happens if a party makes a false statement?

Answer 9

If it is verified by a statement of truth but without honest belief, this can lead to contempt of court.

Question 10

What is an affidavit?

Answer 10

A form of a written statement, similar to a witness statement, but it is sworn evidence.

Question 11

What can a witness give instead of a witness statement?

Answer 11

A witness summary or affidavit.

Question 12

What format must be followed for witness statements and affidavits?

Answer 12

PD32.

Question 13

What is a deposition?

Answer 13

A deposition is where a person is examined before a hearing takes place.

Question 14

What is the procedure of a deposition?

Answer 14

A party applies for an order of a deposition, the deponent is then examined by a judge/court officer, which is then recorded in full and a copy is sent to the court, the party obtaining a deposition and all other affected parties.

Question 15

What may a deposition require?

Answer 15

A production of any relevant documents.

Question 16

What must a deposition order contain?

Answer 16

A date, time and place of examination.

Question 17

What kind of manner must a deposition take place in?

Answer 17

Similarly to an examination at trial and it can be private in the right circumstances.

Question 18

Who does the deposition apply to?

Answer 18

Technically anyone as it can be conducted that a person not named in the order to be examined if all partis consent to this and are present.

Question 19

When can a deposition be used and when should it be served?

Answer 19

It can be used at a hearing - if they are intending to use it they must serve a notice of at least 21 days before fixed hearing.

Question 20

If a deposition is used at a hearing, what can the court require?

Answer 20

For the deponent to attend the actual hearing and give evidence orally.

Question 21

Can a deposition be inspected?

Answer 21

Yes, it is treated the same as a witness statement.

Question 22

What is a witness statement?

Answer 22

A witness statement is a written signed statement containing evidence which will orally be given at trial.

Question 23

What can the court order in terms of witness statements?

Answer 23

For them to be served on all parties and give directions as to how they are to be served/filed.

Question 24

If a party wishes to rely upon a witness statement at trial, what must happen?

Answer 24

If a party wishes to rely upon it, they must call the witness to give oral evidence or put the statement as hearsay.

Question 25

How else can a witness statement be used at trial?

Answer 25

As an examination in chief.

Question 26

What power does the court have in terms of amplification of evidence?

Answer 26

The court has the power to limit the information in the witness statement or oral evidence to relevant matters only.

Question 27

What happens if a witness wants to expand upon their evidence at trial?

Answer 27

With courts permission, he may be able to expand upon his statement and give evidence as to new matters since the witness statement was served IF THERE IS GOOD REASONS.

Question 28

What happens if a witness wants to expand upon their evidence at trial but is not allowed?

Answer 28

Counsel may deal with it as a preliminary issue as late changes are seen to be unfair to the other side.

Question 29

What happens if a witness is not called?

Answer 29

if the party that serves the witness statement does not call the witness or put the evidence as hearsay, that means any party can put a statement in as hearsay and that witness can be examined.

Question 30

What happens if a party fails to attend a trial but has filed a witness statement?

Answer 30

The statement will not be treated as hearsay to be relied upon at trial.

Question 31

What is a witness summary?

Answer 31

A witness summary is where someone who is finding it difficult to serve a witness statement can apply with permission to serve a witness summary which is a summary of evidence.

Question 32

What must a witness summary include?

Answer 32

Name, address of intended witness, served within same period of witness statement, same rules as expanding on statements and formats as witness statements.

Question 33

If a witness summary is wanted, what must a party do?

Answer 33

Apply for permission as it must be expressly sought as this is not standard directions.

Question 34

What is the consequence of failing to serve a witness statement or summary?

Answer 34

The witness will not be allowed to be called.

Question 35

What can a witness be cross examined on?

Answer 35

Any part of their witness statement even if it was not examined during examination in chief.

Question 36

Can a witness statement be used for any other purpose?

Answer 36

No, only for the purpose of the proceedings in which it is served unless there is consent in writing or court gives permission.

Question 37

Can a witness statement be available for inspection?

Answer 37

Yes, during trial.

Question 38

What if a party does not want a witness statement to be available for inspection?

Answer 38

A party may ask for this but the court will not approve this unless it is in the interests of justice, public interest, nature of financial info, and need to protect CC/PP.

Question 39

What is a witness summons?

Answer 39

A document produced by court to require someone to attend court to give evidence or produce a document which each party is given a separate summons.

Question 40

Who issues a witness summons?

Answer 40

Usually court, but parties can ask.

Question 41

When must a party obtain permission from court in terms of witness summons?

Answer 41

If the summons are issued less than 7 days before trial, if summons are issued for a witness to attend court/produce docs on any date except for trial/any other hearing.

Question 42

Who can set aside/vary a summons?

Answer 42

Court may do this.

Question 43

What if a court is inferior to issue a witness summons?

Answer 43

Another court can do this if the court who is wishing to do this is inferior.

Question 44

When must a witness summons be served?

Answer 44

A witness summons becomes binding if it is 7 days before a witness is due to be required in court.

Question 45

What is the right of a witness in terms of compensation?

Answer 45

A witness must be offered or paid a reasonably sufficient amount to compensate loss of time/travel expenses.

Question 46

What is a notice to admit facts?

Answer 46

This is where a party serves a notice on another party requiring him to admit certain facts or parts of the case to dispose of those facts.

Question 47

What is the time limit for a notice to admit facts?

Answer 47

21 days before a fixed trial.

Question 48

When can an admission of facts be used?

Answer 48

Only in the current proceedings.

Question 49

What is deemed to be admitted unless asked?

Answer 49

Authenticity of documents.

Question 50

What is the procedure if someone wants to prove a documents authenticity?

Answer 50

It must be served a the latest date of serving a witness statement/within 7 days of disclosure of document.