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Civil Litigation > Unit 19 - Civil Evidence > Flashcards

Unit 19 - Civil Evidence Flashcards

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1
Q

If a witness statement is not served within the time specified by the court, can the witness be called?

A

Only with court permission.

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2
Q

If a party serves a witness statement and wishes to rely at trial on the evidence of the witness who made the statement, what MUST he do?

A

Call that witness the give oral evidence unless the court orders otherwise or he calls it as hearsay.

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3
Q

TRUE or FALSE. A witnesses’ WS is their oral EIC unless court orders otherwise.

A

TRUE.

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4
Q

Can a witness amplify their WS at court?

A

With permission of the court.

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5
Q

Can a witness give evidence in relation to new matters arising since WS served on other parties?

A

With permission of the court.

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6
Q

Under what circumstances will a court give permission for witness to amplify/give new evidence?

A

If there are good reasons not to confine evidence of W to contents of WS.

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7
Q

Can either party put a WS in as hearsay evidence?

A

Yes. The other party can if witness not called to give evidence OR WS not put in as hearsay evidence.

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8
Q

How much notice is needed before deposition?

A

Serve at least 21 days before day fixed for hearing.

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9
Q

Define hearsay under CEA 1995:

A

A statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated.

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10
Q

Define statement under CEA 1995:

A

a representation of fact or opinion.

Can be made orally/by writing/by conduct.

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11
Q

TRUE or FALSE. Hearsay evidence in civil trials is inadmissible unless rendered admissible.

A

FALSE. It is admissible unless rendered inadmissible.

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12
Q

The duty to give notice to rely on hearsay evidence does NOT apply:

A

to evidence at hearings other than trials;

Where requirement excluded by PD

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13
Q

Do the provisions of CEA apply to claims on the small claims track?

A

No

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14
Q

Is there a duty to give notice of intention to rely on hearsay evidence in respect of interim applications?

A

No

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15
Q

What determines if a statement amounts to hearsay?

A

If the statement is being tendered as evidence of the matter stated (e.g. to prove the truth of its contents).

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16
Q

Where a party intends to rely on hearsay evidence and it is to be given by a person giving oral evidence, what constitutes notice?

A

Serving a copy of the WS in accordance with court orders.

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17
Q

Where a party intends to rely on hearsay evidence contained in WS of a person who is not being called to give oral evidence, what constitues notice?

A

Service of WS in accordance with court orders;

Informing the other parties that the witness was not being called;

Give the reason why the witness will not be called.

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18
Q

What is the latest day for serving notice of hearsay?

A

The latest date for serving witness statements.

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19
Q

What is the prescribed form for hearsay notices?

A

There is no set form.

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20
Q

TRUE or FALSE. A failure to give notice in accordance with the rules renders hearsay evidence inadmissible.

A

FALSE, however court will take it into account when exercising powers/costs/affecting weight of evidence.

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21
Q

Is hearsay evidence inadmissible if the person who made the statement was not competent as a witness?

A

YES.

E.g. mental capacity / lack of understanding

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22
Q

Can opinion evidence be inadmissible as hearsay?

A

Yes.

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23
Q

Can a party request particulars of evidence, when notified of hearsay intention

A

Yes

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24
Q

How long does a party have to apply for XX of hearsay evidence after notice?

A

14 days after notice is served.

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25
Is an application required to attack hearsay maker's credibility?
No. But notice must be given.
26
List some factors that the court will take into account when evaluating what weight to attach to hearsay evidence.
Any circumstances from which any inference can be drawn as to the reliability or otherwise of the evidence e.g.: - Would it have been reasonable to have produced the maker of the statement as a W? (if a party adduces the statement rather than calls the W, relatively little weight will be attached) - Whether the original statement was contemporaneous with the occurrence/existence of the matter stated - Whether the evidence is multiple hearsay (see s 1(2)(b) for the definition of multiple hearsay) - Whether any person involved had any motive to conceal/misrepresent the facts - Whether the original statement was an edited account or was made in collaboration with another or for a particular purpose - Whether the circumstances in which the evidence is adduced suggest an attempt to prevent proper evaluation of its weight
27
What is the purpose of CPR 33.6?
Give parties the chance to inspect any plans, model or photographs that another party intends to produce at trial.
28
Is notice required to adduce plans, photographs or models?
Yes, unless court says otherwise.
29
When will a trial not take place at the court where the case is being managed?
If it is appropriate having regard to the needs of the parties and the availability of court resources.
30
When might the burden of proof in a civil trial not rest on the alleger?
For defences/counterclaims; Contractual agreement; Statute
31
Give some examples of where the balance of probabilities is NOT used in civil trials:
Committal proceedings for civil contempt of court; Where statute requires criminal standard; Sex offender orders; Football banning orders; Anti-social behaviour order.
32
Can a presumption that a claimant committed a criminal conviction be rebutted?
Yes but very very hard.
33
TRUE or FALSE. Where a claimant initiates civil proceedings with a view to re-litigating their criminal determination, that is an abuse of process.
TRUE.
34
Can a court limit XX?
Yes 32.1(3)
35
When does a party not have to call a WS witness to give oral evidence at trial?
IF court says otherwise; or The statement is entered as hearsay evidence.
36
When could C XX their witness in civil evidence/
If they have their WS, do not call it as evidence, D then puts it in as hearsay evidence, C can then apply for permission to have W called as D's witness!
37
What is a witness summary?
Summary of evidene which would be included in a witness statement
38
TRUE or FALSE. Witness staetments are open to inspection during course of trial
TRUE, but court can direct otherwise.
39
On what bases may a court say a WS is not open to inspection?
Interests of justice; Public interest; Nature of any expert medical evidence; Nature of confidential information. Need t protect interests of protected party.
40
When is notice of an intention to rely on hearsay evidence not required?
Hearings other than trials; Affidavits/WS used at trial which dont contain hearsay evidence; Probate actions, using statements alleged to have been made by the person whose estate is subject of proceedings; IF excluded by practice direction;
41
What is a witness summons?
A requirement for a witness to attend court to give evidence or to produce documents to the court.
42
Can a court issue a witness summons in aid of an inferior court or tribunal?
Yes. (being a court thar does not have power to issue Witnes summons in proceedings)
43
Who serves a witness summons?
By court, UNLESS the person asks court if they can serve it themselves.
44
Can you cross-examine on a WS used in support of an application for summary judgment?
No, right to XX only applies to WS used at trial, not other hearings. However, parties can apply under CPR 32.7 to XX in hearings other than trials if there are good reasons to justify the additional delay and expense.
45
In working out what is hearsay, use a two part test:
Would D want to cross examine W to dispute their account? If yes, can they? If they can't, hearsay.
46
If a party wishes to produce photographs at trial ,what should they do?
Serve copies of photographs along with witness statement. In WS, refer to the photographs and say that he intends to rely on them at trial. No need to apply for court permission. Give notice no later than latest date for serving WS (best way is to refer to them in WS) But must give an opportunity to inspect the photographs, that is why you should serve copies of them!
47
TRUE or FALSE. A party who intends to put in evidence a deposition at a hearing must serve notice of his intention to do so but only to the court.
FALSE. But do so to ever other party.
48
TRUE or FALSE. The court must order a dponent to attend the hearing and give evidence orally.
FALSE> They made do so.
49
TRUE or FALSE. If a deposition is to be used in a hearing, the party intending to put it into evidence must serve notice of their intention to do so at least 21 days before the day fixed for the hearing.
TRUE.
50
TRUE or FALSE. If a deposition is to be used in evidence in a later hearing, the decision to allow this must be made by a High Court Judge.
FALSE. No such stipulation as to rank.
51
If a deposition is taken for a hearing other than a trial, give examples of when it may be used for some other purpose.
By the party who was examined; if the party who was examined agrees; or If the court gives permission
52
What were witness summonses formerly known as in the High Court?
Subpoena.
53
TRUE or FALSE. A witness summons is issued on the date entered on the summons by the court.
TRUE.
54
TRUE or FALSE. If the other side agree to a summons being issued, the party making the application will not need the courts permission.
FALSE. They need permission.
55
TRUE or FALSE. The courts permission may be obtained if a party applies to have a summon issued less than 7 days before the date of the trial.
FaLSE. It must be obtained.
56
TRUE or FALSE. The court may set aside or vary a witness summons. Such an application will be made to a District Judge or a Master.
TRUE.
57
TRUE or FALSE. A court direction can render a late witness summons valid.
TRUE.
58
TRUE or FALSE. Can a party indicate desire to serve their own witness statement by leaving a telephone message with the court?
No. Must indicate the desire in writing.
59
TRUE or FALSE. A party subject to a witness summons or a deposition is entitled to claim for reasonable travel expenses and to compensation for loss of time.
TRUE.
60
If an examiner conducts a deposition decides that it would be in the best interests of the parties if a deposition was conducted in private, and sends a copy to the party who obtained the initial deposition order: Who else must they send the deposition to? Who does MS Wright potentially have to send the deposition order to?
1. To the person who obtained the order for deposition AND to the corut where the case is proceedings. 2. The party who obtained the orer must send each of the other parties a copy of the deposition which he receives from examiner.
61
What is the usual sanction that a court may impose upon a party who refuses to cooperate with an order requiring attendance to be deposed before an examiner?
May be ordered to pay any costs.
62
What standard of proof is required when a party in civil proceedings makes an allegation of fraud?
Balance of probability.
63
Does a party only have to serve a witness statement at proceedings other than a trial?
No. At trial parties expected to serve WS and give oral evidence. At hearings other than trials, the WS can be produced w/o witness being called to give oral evidence.
64
If a witness statement is unused at trial, can it be used as evidence in other proceedings?
Usually no. However, once a statement has been used at a hearing held in public, it is in the public domain and no privilege attaches to it.
65
Can a party be liable for contempt of court if they make a false statement in a document verified by a statement of truth but that document is not relied on in the proceedings?
Yes. Only if proved beyond reasonable doubt that if the statement had been used it would have likely interfered with the course of justice in some respect.
66
Do judges have power to restrict evidence in small claims track?
Yes, they can refuse evidence if unfair because late delivery did not allow R to prepare a sufficient response.
67
Give an example of a rule which requires witness evidence to be presented in the form of an affidavit.
Applications for freezing injunctions, search orders or an order requiring an occupier to permit another to enter his land.
68
Should parties always consider making an admission if it seems likely that the other side will succeed on the point?
Yes. Could lead to wasted costs order, regardless of who wins.
69
TRUE or FALSE. A party shall be deemed to admit the authenticity of a document disclosed to him unless he serves notice that he wishes to document to be proved at trial.
TRUE.
70
TRUE or FALSE. If a party does not require a document to be proved at trial, they are deemed to accept its contents.
FALSE. Only deemed to accept authenticity.
71
A witness summoned must be offered a sum by way of compensation for loss of time. How is this sum calculated?
Such sum as may be specified in PD34A. Same sum payable to a Crown Court witness, so £67 if employed or £85,90 if self-employed.
72
TRUE or FALSE. Where a party obtains an order for a deposition to be taken, it must also serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
FALSE. the court may order the party to do so, but if it does not do so the deposition may be given in evidence at the hearing.

Civil Litigation (19 decks)

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