UNIT 5: EVIDENCE Flashcards
Who bears the legal burden of proof?
The claimant
* Each fact must be proved unless it is admitted by the opponent
o e.g., if C alleges breach of contract, they must prove:
contract existed between the parties
D broke the relevant express and/or implied terms of the contract
C suffered loss as a result
Exception to the claimant bearing the legal burden of proof?
- Where D in civil proceedings has been convicted of a relevant criminal offence
o s11 Civil Evidence Act 1968 - burden of proof is reversed
o It is for D to prove that they should not have been convicted, if this is what they wish to argue
Who bears the burden for contributory negligence?
- Contributory negligence = Burden of proof will be on D
o D will have to prove that C’s failure to take care contributed to the damage suffered
Standard of proof for civil cases?
- Civil cases - C is required to prove a fact on the balance of probabilities
o Requirement - judge must be persuaded that C’s version of events if more likely to be true than D’s (greater than 50% chance)
General rule for evidence?
any fact upon which a party intends to rely must be proved at a trial by oral evidence
o In practice - much of the evidence in a civil litigation case is actually dealt with in writing
Calling a witness?
o Party must serve a witness statement on the other parties setting out all the facts which that witness would be allowed to give orally at trial
Cannot include inadmissible or irrelevant material
o Without serving the statement, the witness will only be allowed to speak at trial with the court’s permission (rare)
When are witness summaries permitted?
o If witness statement is unobtainable - e.g., because person is not contactable abroad, or it is difficult to persuade a witness to give a statement
o Party can apply to court without notice for an order to serve a witness summary instead. This contains:
witness’s name and address
evidence the witness can provide, if it is known; or if not
the matters on which the witness would be questioned at trial - i.e., the relevant disputed issues
o NB witness summaries are less satisfactory than statements, but are useful where the alternative is no evidence at all
What should head the witness statement?
title of the proceedings
name of the witness,
the number of the statement,
date in the top right corner
Opening paragraph contents?
title of the proceedings and details such as the name of the witness, the number of the statement, and the date in the top right corner
Number rules for witness statement?
- Paragraphs must be numbered with all numbers, including dates, being expressed as figures and not words, thus ‘five people’ should read ‘5 people’
- Format for dates would be, e.g., 16 January 2022, and NOT 16.01.2022
Witness statement - what should be included?
- Witness must indicate which of the statements are made from their own knowledge and which are based on information and belief, naming the source if appropriate
- Process by which the statement was prepared should be included (e.g, face to face or over telephone with a party’s solicitor)
Must there be a statement of truth?
Yes
’I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’
Can a witness statement be signed by a legal rep?
no
Special provisions where statement cannot be given in English?
o statement should be drafted in witness’s own language
o date and details of translation should be included
Directions for exchange?
- How? - Witness statements are usually exchanged simultaneously
o prevents one party having an advantage over the other by seeing their opponent’s witness statement first - When? - usually exchanged a few weeks after disclosure and inspection of the documents, although the interval will vary depending on the complexity of the matter.
o Why the interval? - allows the witness an opportunity to review their evidence after having taken into account any documents that have been inspected
Procedure?
- Pre-hearing - judge will have read all the witness statements that were exchanged
these form part of the trial bundle - Witness will go into witness box, take the oath or affirm, be shown a copy of their statement and confirm the contents are true
- It is then assumed that the witness has said, from the witness box, everything in their statement, and so this stands as their evidence- (or examination-) in chief.
- Unless court gives permission for additional examination in chief, witness will then be subject to questioning by the other side’s advocate - i.e., cross-examination
Can a witness add to a statement at trial?
- Witness cannot add to the statement at trial unless the court gives permission (rare)
o Court will only give permission if satisfied that there is a good reason why the evidence was not dealt with in the statement itself (e.g., because it needs to be amplified or a new relevant matter arose after the statement was served)
What is an affidavit?
- Definition - sworn statements of evidence, where the maker has to swear or affirm before a solicitor (not their own), or other authorised person, that the contents of the affidavit are true
- Use - have largely been replaced by witness statements since the introduction of the CPR
o Will be used in applications for a freezing injunction or a search order
When is evidence relevant?
- When it addresses relevant facts, i.e., those which are in dispute and which have to be proved by the party calling the witness
- Easy tell - when comparing the PoC and the defence, the facts not admitted and denied are the ones in dispute
General rule for opinion?
- General rule - opinion evidence is not admissible because the function of a witness is to give evidence of relevant facts from which the court can draw its own conclusions
Exceptions to opinion rule?
Facts personally perceived:
* s3(2) Civil Evidence Act - a witness may give a statement of opinion if made as a way of conveying relevant facts personally perceived by them.
* Requirements:
o Rather than stating opinion, witness should list the facts they saw which led them to reach their conclusion
o If ^ fails, even though the accuracy of the witness’s assessment of e.g., the speed or level of intoxication might be challenged, the evidence would usually be admissible
* What can witnesses not do?
o Draw any conclusion from their evidence - this is the role of the court
o Example - witness to a road traffic collision cannot say in evidence that (in their opinion) D’s speed was ‘excessive in the circumstances’ or ‘too fast’ because it is for the trial judge to determine if D was driving negligently
Expert evidence:
* cf witnesses of fact
* Experts are permitted to express their opinions in court
Hearsay requirements?
o a statement made outside court;
o which is repeated in court;
o to prove the truth of the matter stated
* Requirements -
o the statement must be:
a relevant fact; or
an admissible opinion
o It may be:
oral or written; and
repeated in court in a document, or by the witness whether in their witness statement or in oral evidence
o The crucial aspect is the purpose:
The statement must be to prove the truth of the words said
i.e., the trial judge is being asked to rely on the repetition of the words to reach a decision in the case
Notice requirements for hearsay?
o If the party intends to call the witness whose statement contains hearsay evidence, they simply need to serve the other party with the statement. D also serves notice that they will attack credibility if desired.
After being served notice for hearsay evidence, what must the opponent/defendant do?
o The opponent must then decide whether to ask the court to order that the maker of the original statement attends for cross-examination or serve notice of intention to attack the credibility of the hearsay evidence.
o If the party does not propose to call the witness to give oral evidence but instead intends to rely upon the witness statement itself, the whole statement becomes hearsay. This obviously limits the opponent’s options as they cannot cross-examine the witness and so they must be given advance warning of the situation.
