Syllabus Area 21 - Civil Trial and Evidence

Question 1

What is the general rule of the use of plans, models and photos as evidence?

Answer 1

If it is not contained within the initial evidence/witness statement, it may not be received at trial unless notice is given to other parties.

Question 2

What is the timing for giving notice to use plans/photos/models as evidence?

Answer 2

Notice should not be later than the date for serving a witness statement.

Question 3

What happens if the plan/photo/model is formed part of expert evidence?

Answer 3

Must give notice when experts report is served on other party.

Question 4

What happens if there is no evidence being used to disprove an allegation in a witness statement?

Answer 4

Notice must giving at least 21 days before relevant hearing.

Question 5

What must you allow parties to have in terms of the use of photos/plans/models?

Answer 5

Give opportunity to insect it and agree to its admission.

Question 6

What is the consequence of failing to attend the trial?

Answer 6

Court may proceed without you in the trial and may strike out the whole entire claim or part of it.

Question 7

What happens if the SOC are stuck out of the claim due to failure to attend the trial?

Answer 7

The other party must still prove their SOC e.g C has claim struck out but D must still prove his defence.

Question 8

What does the court have the power to do even if they have stuck out the case?

Answer 8

Restore proceedings if it wants to.

Question 9

What happens if the party fails to attend and the judge passes judgement?

Answer 9

The party must apply for judgement or it to be set aside (supported by evidence).

Question 10

What is the criteria for if a party wants to restore proceedings?

Answer 10

All three must be met - acted prompt, good reason for not attending trial and reasonable prospect of success.

Question 11

What does promptly mean?

Answer 11

No solid answer but probably not over 4 weeks.

Question 12

What does good reason mean?

Answer 12

Genuine and honest e.g medical condition.

Question 13

What is the consequence if the party is able to restore proceedings?

Answer 13

Applicant may have to pay other side’s costs and sum on account.

Question 14

What is considered being present at trial?

Answer 14

If theri solicitor is representative of them - video link does not satisfy though.

Question 15

How is a fast track/multi track trial conducted?

Answer 15

Judge will review papers, judge confirms/varies timetable, at the end of trial, judge assess costs of claim.

Question 16

Which court is usually holding the trial?

Answer 16

Same one which manages the case but dependent on parties needs and courts resources.

Question 18

What happens in muli track if trial is not finished?

Answer 18

Judge will sit for consecutive days.

Question 19

What is hearsay evidence?

Answer 19

It refers to a statement made outside of court which is to prove something true but it is not witnesses direct, first hand account.

Question 20

What is the status of hearsay?

Answer 20

Not automatically excluded in civil proceedings.

Question 21

Name the safeguards for hearsay evidence?

Answer 21

Giving notice, failure to comply, agreement to waiver it, court rulings.

Question 22

What happens if a party intends to rely on hearsay evidence at trial?

Answer 22

If they intend to rely on it at trial, whether or not calling a witness to give oral evidence, that witness statement must be served on the other party in accordance with court orders.

Question 23

What happens if a party intends to rely on hearsay evidence at trial but the witness is not called?

Answer 23

The party on the other side must inform why the witness is not being called and why.

Question 24

Who must parties serve notice on in terms of hearsay?

Answer 24

Must serve notice on parties who identify as hearsay, state their intention to rely upon it, gives reasons why witness not called.

Question 25

What is the time limit for hearsay notice?

Answer 25

Same as witness statements.

Question 26

What should happen if hearsay is in a document?

Answer 26

Serve copy on everyone.

Question 27

How can notice be waived for hearsay

Answer 27

If everyone agrees, the requirement to give notice can bw achieved.

Question 28

What happens if there is a failure to comply with giving notice?

Answer 28

The evidence can still be admitted and the court may consider this failure when managing the case & costs.

Question 29

When is notice of hearsay NOT required?

Answer 29

Any evidence at hearings OTHER than trials, an affidavit, witness statement which does not include hearsay, a statement of probate, anything excluded by court.

Question 30

What power does the court have in terms of cross examination on hearsay?

Answer 30

Court has power to permit the maker of the hearsay statement to be cross examined if the witness has not been called.

Question 31

What is the time frame for application to cross examine a witness on hearsay evidence?

Answer 31

14 days of service of notice of intention to rely on hearsay.

Question 32

What considerations will the court give when giving weight to hearsay?

Answer 32

Whether it is reasonable to expect party to come as a witness, if statement was made at same time as event, whether evidence is multiple layers of hearsay, whether anyone involved has a reason to hide or misrepresent facts, if the hearsay was edited or made for a specific purpose, whether it was impose an unfair evaluation.

Question 33

Are convictions admissible in civil proceedings?

Answer 33

Yes, they are to prove the committed offence. They shall be taken to have committed the offence unless proved otherwise and without prejuece to any of the other admissible evidence.

Question 34

What in particular is admissible in terms of convictions?

Answer 34

Charge sheet, indictment, complaint, contents of a document etc.

Question 35

What is a legal burden?

Answer 35

It is placed on a party who has the prove the facts in issue to a required standard - balance of probabilities.