W7 MCQ (Witness & Expert Evidence)

Question 1

When does exchange of witness statements usually take place?

A. Immediately after the parties have filed directions questionnaires.

B. Immediately after disclosure and inspection.

C. Immediately after the defendant has filed its defence.

D. Immediately after exchange of expert evidence.

E. Immediately after allocation and case management.

Answer 1

B. Immediately after disclosure and inspection.

The court will usually give directions for the exchange of witness statements at the allocation and case management stage and therefore exchange will not take place beforehand e.g. after the defendant has filed its defence or the parties have filed directions questionnaires. Exchange of witness statements is generally the step in the action that follows disclosure and inspection. This is because it is useful to review all disclosure documents prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.

Question 2

The claimant calls a witness to give evidence at trial. How will the witness statement be used by the claimant at trial?

A. As written only evidence

B. For oral examination by the claimant

C. For re-examination by the defendant

D. As evidence in chief

E. For cross-examination

Answer 2

D. As evidence in chief

Any fact which needs to be proved by evidence of witnesses at trial will be by oral evidence (CPR 32.2(1)(a)). However, a witness statement usually stands as evidence in chief at the trial (CPR 32.5(2)) so that in this scenario the claimant would not have to take oral evidence from the witness. The witness is then cross-examined by the other party, here the defendant, and re-examined by the claimant.

Question 3

Which of the following does the court have no power to control (in relation to witness statements)?

A. The length of witness statements.

B. The issues to be covered in witness statements.

C. The number of witness statements.

D. None of the other answers is correct – the court has the power to control all of those.

Answer 3

D. None of the other answers is correct – the court has the power to control all of those.

The court can control the issues to be covered in witness statements, together with their number and length.

Question 4

In what way is witness evidence for an interim hearing different to that for a trial?

A. A witness statement for an interim hearing has extra paragraphs relating to the reason for the statement and the position taken in relation to the application.

B. A witness statement for an interim hearing does not necessarily need to be by an individual – it can be by a company.

C. The written evidence for an interim hearing should be contained within an application notice or a statement of case.

D. A witness statement for an interim hearing requires different wording for the statement of truth.

Answer 4

A. A witness statement for an interim hearing has extra paragraphs relating to the reason for the statement and the position taken in relation to the application.

Question 5

Near the start of a witness statement, the witness will usually include a paragraph stating:

A. I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.

B. I believe that the facts stated in this witness statement are true. Where I have consulted others in relation to this witness statement, there are views are also stated to the best of my belief.

C. I believe that the facts stated in this witness statement are true. I believe that the facts stated occurred as stated, and where there is a range of opinions on matters described, I state the range of opinions to the best of my ability.

D. This witness statement is a true statement of the facts as I perceived them. Nothing in this witness statement is based on information provided to me by others.

Answer 5

A. I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.

Question 6

What is the correct form of statement of truth for a witness statement given by the managing director of the Claimant in support of the Claimant’s claim?

A. The Claimant believes 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.

B. I believe that the facts stated in this statement of case 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.

C. 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.

D. I believe that the facts stated in this witness statement are true.

Answer 6

C. 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

Question 7

Which type of application needs evidence by way of affidavit rather than witness statement?

A. An application to vary a direction.

B. An application for summary judgment.

C. An application for an interim prohibitory injunction.

D. An application for a search order.

Answer 7

D. An application for a search order.

The other applications listed do not require evidence in the form of an affidavit.

Question 8

An affidavit opens with the deponent stating, “I [name and other details]…

A. …state on oath…

B. …confirm to the court my honest belief that…

C. …hereby swear that…

D. …do solemnly declare…

Answer 8

A. …state on oath…

Question 9

Which type of application needs evidence by way of affidavit rather than witness statement?

A. An application for an interim payment.

B. An application for a freezing order.

C. An application to strike out a statement of case.

D. An application for relief from sanctions.

Answer 9

B. An application for a freezing order.

The other applications listed do not require evidence in the form of an affidavit.

Question 10

An important difference between an affidavit and a witness statement is that…

A. The form of statement of truth on an affidavit is different.

B. Proceedings for contempt of court can be based on any error in an affidavit, whereas in the case of a witness statement, it is only contempt of court if a witness does not have an honest belief in what is stated.

C. An affidavit is directly transcribed from an oral account, but a witness statement is not always so transcribed.

D. An affidavit must be sworn before a person authorised to administer affidavits

Answer 10

A. The form of statement of truth on an affidavit is different.

Well done! In terms of the other answers: - there is no statement of truth in an affidavit. - what is said in relation to proceedings for contempt of court is roughly correct in relation to witness statements, but incorrect in relation to affidavits. - it is wrong to say that an affidavit is directly transcribed from an oral account.

Question 11

All evidence that is relevant to the facts is admissible in civil proceedings. However, there are special procedural safeguards built into the rules and in the Civil Evidence Act 1995 relating to the admissibility of which type of evidence?

A. Oral evidence

B. Opinion evidence

C. Expert evidence

D. Evidence which is privileged

E. Hearsay evidence

Answer 11

E. Hearsay evidence

Hearsay evidence is the correct answer. Hearsay evidence is considered less reliable than direct evidence and so there are procedural safeguards to ensure hearsay can be carefully scrutinised eg by requesting particulars of the hearsay or by challenging its weight (Civil Evidence Act 1995 and CPR 33).

Opinion evidence is not the correct answer; the special rules relating to opinion evidence are contained in the Civil Evidence Act 1972. The element on expert evidence contains more details.

Evidence which is privileged is not the correct answer; the special rules for privilege are contained in case law. The elements on disclosure and inspection contain more details.

Oral evidence is not the correct answer; there are not special ‘evidential’ rules, but procedural requirements regarding oral evidence of witnesses of fact (CPR 32) and requirements regarding oral evidence of experts (CPR 35).

Expert evidence is not the correct answer; there are not special ‘evidential’ rules, but procedural requirements regarding expert evidence (CPR 35).

Question 12

A man is giving oral evidence at trial on behalf of the claimant. He states to the court: “during the meeting, the defendant and I reached an agreement that the price would be £100 per item”.

Is this hearsay evidence?

A. It is hearsay because it is an oral statement.

B. It is hearsay. It is being adduced in court to prove the truth of the matter stated.

C. It is hearsay. He is repeating a statement that someone else made out of court.

D. It is not hearsay. He is making a statement in court of facts that he witnessed himself.

E. It is not hearsay. He is making a statement in court of facts that someone else witnessed.

Answer 12

D. It is not hearsay. He is making a statement in court of facts that he witnessed himself.

John’s statement is not hearsay. He is making a statement in court of facts that he witnessed himself.

Question 13

How does a party give notice to the other party of hearsay that appears in the witness statement of a witness giving oral evidence at trial?

A. Exchange witness statements

B. No notice is required.

C. Telephone the other party.

D. Exchange witness statements and provide formal notice of the hearsay.

E. Provide formal notice.

Answer 13

A. Exchange witness statements

The correct answer is exchange of witness statements. No ‘formal’ notice is required as notice is deemed on exchange. This means it is incorrect to say that it is necessary to exchange witness statements and provide formal notice of the hearsay, or to telephone the other party, or that no notice is required, or that formal notice is required.

Question 14

In a road traffic accident, a driver suffers several injuries including brain damage, a punctured lung and a broken leg. What expert evidence is admissible in the personal injury case at court?

A. The orthopaedic surgeon giving an opinion on the impact of the brain damage on the driver.

B. The orthopaedic surgeon giving an opinion on the implications of the driver’s punctured lung.

C. The orthopaedic surgeon giving an opinion on the relevant law.

D. The orthopaedic surgeon giving an opinion on the driver’s broken leg.

E. The orthopaedic surgeon conveying perceived facts.

Answer 14

D. The orthopaedic surgeon giving an opinion on the driver’s broken leg.

The general rule is that opinions are not admissible. An exception is expert evidence. An expert must give an opinion on a matter upon which the expert is qualified. An orthopaedic surgeon deals with the skeleton and joints and so is an expert in giving an opinion on the driver’s broken leg. An orthopaedic surgeon is not an expert in a punctured lung or brain damage; these injuries would be outside the orthopaedic surgeon’s expertise. The judge is the expert in law. Another exception to the general rule is perceived facts. The orthopaedic surgeon is not a witness conveying relevant facts personally perceived by the expert.

Question 15

The defendant’s solicitor asks the court for permission to use an actuarial expert to assist with calculating damages. Which of the following is correct?

A. The actuarial should try to maximise the defendant’s claim for damages.

B. The court’s permission is needed to instruct the actuarial expert.

C. If the defendant’s solicitors do not exchange the expert’s report by the date set out in the court’s directions, the evidence cannot be used without the court’s permission.

D. The defendant’s solicitors must provide the name of the actuarial expert in the directions questionnaire.

E. The court’s permission to call an expert is usually sought by the parties at the pre-action stage.

Answer 15

C. If the defendant’s solicitors do not exchange the expert’s report by the date set out in the court’s directions, the evidence cannot be used without the court’s permission.

An expert’s report must be exchanged by the date set out in the court’s directions otherwise the evidence cannot be used without the court’s permission (CPR 35.13). Permission (CPR 35.4) is to call an expert or to rely on the written expert’s report at trial; permission is not needed to ‘instruct’ the expert. Permission is usually sought in the directions questionnaire and will be dealt with in the directions issued at the case management stage. The name of the actuarial expert does not need to be provided in the directions questionnaire unless it is practicable to do so. The duty of the expert will be to the court and this overrides any obligation to the defendant’s solicitor to maximise the claim.

Question 16

A single joint expert has been instructed following a direction being made by the court in relation to this expert evidence. What should the single joint expert have received in addition to the instructions to provide a report?

A. An order confirming the date that the report of the expert shall be filed at court from the claimant.

B. An order confirming the date that the report of the expert shall be filed at court from the defendant.

C. An order confirming the date that the report of the expert shall be filed at court sent by the court.

D. An order confirming a direction for a discussion of experts.

E. An order to prepare a statement of the issues on which the experts agree and which they disagree.

Answer 16

A. An order confirming the date that the report of the expert shall be filed at court from the claimant.

Where there is an order requiring an act by an expert, the party instructing the expert must serve the order on the expert (35 PD 8). In the case of single joint experts, this is the claimant (not the defendant or the court). A discussion of experts and a statement of issues would not be appropriate for a single joint expert, but are tools used to reduce the issues where each party instructs their own expert.

Question 17

The claimant’s solicitor has served extensive questions on the defendant’s expert within 28 days of receiving the expert’s report. The defendant’s expert believes that it would take a disproportionate amount of time to answer the questions and that the questions are simply cross-examination. What should the defendant’s expert do next to address its concerns?

A. The defendant’s expert should ignore the request to answer questions.

B. The defendant’s expert should file a written request with the court for directions.

C. The defendant’s expert should write to the claimant’s solicitor refusing to answer the questions.

D. The defendant’s expert should only answer a proportionate number of the questions.

E. The defendant’s expert should answer the questions as soon as possible.

Answer 17

B. The defendant’s expert should file a written request with the court for directions.

The rules allow an expert to submit written requests for directions to the court to help them carry out their task (CPR 35.14). This would be better than refusing to answer the questions, answering a number of questions or ignoring the request because the rules do allow the claimant to ask the expert questions within 28 days of the expert’s report (CPR 35.6). The expert’s answers become part of the report and so if the expert objects to the questions it is important that the issue is dealt with by the court rather than simply answering the questions.

Question 18

The parties in a breach of contract claim have both just received the final report from the single joint expert instructed to advise on the extent of losses suffered by the claimant as a result of the defendant’s breach. The claimant is unhappy with the expert’s conclusions and considers the approach taken to calculating those losses to be unclear and potentially incorrect.

A. Which of the following best describes what the claimant should do next to challenge the expert and the content of the report?

B. The claimant should wait until the final hearing of the dispute when it will be able to cross-examine the expert and challenge the approach taken to the calculation of loss.

C. The claimant should immediately instruct its own expert to advise on loss to allow for enough time for that evidence to be adduced at final hearing.

D. The claimant should put written questions to the expert asking for clarification about the approach taken to the calculation of loss.

E. The claimant should make an application to court asking that the expert’s report be struck out with immediate effect.

F. The claimant should make an application that the instructions to the expert are disclosed so that it can ensure that they contain nothing inaccurate and are not incomplete.

Answer 18

D. The claimant should put written questions to the expert asking for clarification about the approach taken to the calculation of loss

On receiving the report from the single joint expert the claimant should put written questions to the expert (CPR 35.6). This will help it understand how the expert came to their conclusions. It is not appropriate for the report to be struck out as the court’s power relates to striking out a statement of case and not an expert’s report (CPR 3.4). The claimant may indeed want to cross-examine the expert at the final hearing but does not need to wait until then before taking pro-active steps. The claimant cannot rely on the evidence of a new expert without the court’s permission and it is premature to seek this (CPR 35.4). The claimant will have seen the instructions to the single joint expert (CPR 35.8).

Question 19

A witness of fact is called to give evidence in the trial of a claim brought by a claimant property development company against a defendant accountancy firm for losses arising out of alleged negligent advice that was given by the defendant. The witness was the Financial Director of the claimant company at the time the alleged negligent advice was given. The witness’ statement includes the following sentence: ‘At the time the advice was given, the financial assessment provided by the defendant did not accurately reflect the claimant’s financial position’. Is this evidence likely to be admissible?

A. The sentence is likely to be admissible evidence of fact.

B. The sentence is likely to be admissible expert opinion evidence.

C. The sentence is likely to be inadmissible opinion evidence.

D. The sentence is likely to be inadmissible privileged evidence.

E. The sentence is likely to be admissible ‘perceived fact’ evidence.

Answer 19

A. The sentence is likely to be admissible evidence of fact.

The sentence is evidence of fact given by the witness who would have been involved in the events at the time and had the knowledge (as Financial Director) to state that the financial assessment was not accurate. The witness would no doubt go on to give detail of where and why elements of the advice given were inaccurate, which again would be matters of fact. As such, the sentence does not consist of an opinion whether admissible or inadmissible ie it is not based on the witness’s value judgement of the facts. The sentence does not contain any information which falls under any head of privilege (privileged information is, in any event, admissible, if the party/ies entitled to claim privilege wish to waive this).

Question 20

The managing director of a software company is providing evidence in support of an interim application for a search order. In what manner will that evidence need to be ‘signed off’?

A. With a jurat on the part of the managing director personally, sworn before someone who is authorised to administer affidavits.

B. With a jurat by the managing director on behalf of the company, sworn before someone who is authorised to administer affidavits.

C. With a statement of truth by the company.

D. With a statement of truth by the managing director on behalf of the company.

E. With a statement of truth on the part of the managing director personally.

Answer 20

A. With a jurat on the part of the managing director personally, sworn before someone who is authorised to administer affidavits.

An affidavit is needed because the application is for a search order. An affidavit is signed off with a jurat rather than a statement of truth, and must be sworn before someone who is authorised to administer affidavits. An affidavit needs to be signed by someone personally – it is not given by a company or partnership (this is also true of witness statements).

Question 21

A claim has been issued for non-payment of goods delivered by the claimant to the defendant on 8th February. The parties’ written contract stipulates delivery on 1st February. The claimant’s Finance Director made an oral variation to the contract for delivery to be on 8th February. The draft witness statement of the Managing Director (not the Finance Director) includes the paragraph: ‘The Finance Director told me that she spoke to the defendant to change the date of delivery of the goods from 1st February to 8th February and the defendant agreed to the change’.

Which of the following statements best describes how the claimant should deal with / improve upon this evidence?

A. Remove the paragraph from the witness statement, place it in a hearsay notice and serve the hearsay notice on the defendant.

B. Remove the paragraph from the witness statement.

C. Retain the paragraph in the witness statement.

D. Retain the paragraph in the witness statement and serve a notice that the claimant intends to rely on the evidence at trial.

E. Retain the paragraph from the witness statement and obtain a witness statement from the Finance Director.

Answer 21

E. Retain the paragraph from the witness statement and obtain a witness statement from the Finance Director.

The paragraph in the witness statement contains hearsay evidence which is an oral or written statement, made out of court, adduced in court to prove the truth of the matter stated. (Hearsay evidence can sometimes be understood as ‘back-up’ evidence. In other words, the witness has a view about the case and someone ‘says’ something, repeated in the witness statement which ‘backs up’ the witness’s point of view). Hearsay evidence is admissible in civil proceedings by s.1 Civil Evidence Act 1995 (CEA 1995) and so there is no need to remove it. However, if a witness statement can be obtained from the Finance Director, then this is much more persuasive and valuable. It makes the inclusion of the paragraph in the witness statement of the Managing Director much less necessary, but there may still be some benefit in retaining it.

Note that even if it was retained, there would be no need to serve a separate notice that the claimant intends to rely on the evidence at trial.

Question 22

In a breach of contract claim, the parties are due to exchange witness statements by 27 March. On 20 March, the Claimant receives notification that, due to the unavailability of a witness, it will not be possible to contact the witness and finalise her statement until 2 April. The next direction after exchange of witness statements is for experts to report, in late June. Which of the following statements best describes what Claimant should do?

A. Notify the other side that the witness statements will be ready for exchange on 2 April and inform them that the date for exchange of witness statements will need to be delayed until then.

B. Make an immediate application to extend the time for service of the witness statements until 2 April.

C. Serve the witness statements in their current form.

D. Ask the Defendant for an extension of time for exchange of witness statements.

E. Notify the court that the witness statements will be ready for exchange on 2 April and inform them that the date for exchange of witness statements will need to be delayed until then.

Answer 22

D. Ask the Defendant for an extension of time for exchange of witness statements.

It is important not to miss the deadline because if a witness statement for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10) – ‘notifying’ the court or the opponent is not adequate to avoid the sanction. An application to the court should therefore be made before any deadline expires. However, the other side has the power to grant the extension sought, and this would avoid the need for a court application, so this should be explored first. Witness statements should not be served in draft form, as the draft could give away something prejudicial.