Witness And Expert Evidence Flashcards
(103 cards)
1
Q
what limitations can the court invoke in terms of evidence?
A
- exclude evidence as rendering it inadmissible
- limit cross-examination
2
Q
the court can control evidence by giving directions as to —
A
- the issues if the evidence
- nature of the evidence
- way in which the evidence can be placed before the court
3
Q
for witness evidence, the court may give directions —
A
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements.
4
Q
the general rule is that any fact which needs to be proven by witness evidence is to be proved —
A
- at trial, by their oral evidence given in public; and
- at any other hearing, by their evidence in writing.
5
Q
may the court allow witness evidence by video link or other means?
A
Yes.
6
Q
what is a witness statement?
A
a written statement signed by a person which contains the evidence which that person would be allowed to give orally
7
Q
service of witness statements.
A
The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
8
Q
in terms of witness statements, the court may give directions as to —
A
(a) the order in which witness statements are to be served; and
(b) whether or not the witness statements are to be filed.
9
Q
how will an examination in chief be conducted in a civil trial?
A
the witness statement alone shall stand as an examination in chief, unless the court orders otherwise.
10
Q
when must a party call the witness to give oral evidence unless the court orders otherwise?
A
If—
(a) a party has served a witness statement; and
(b) he wishes to rely at trial on the evidence of the witness who made the statement,
11
Q
what happens to the weight of the evidence if the witness is not called to give evidence?
A
the witness statement will be put as hearsay evidence
12
Q
If a party who has served a witness statement does not call the witness to give evidence at trial or put the witness statement in as hearsay evidence, what can the other party do?
A
any other party may put the witness statement in as hearsay evidence.
13
Q
can a witness giving oral evidence at trial amplify his witness statement and give evidence in relation to new matters which have arisen since the witness statement was served on the other parties?
A
Yes. With the permission of the court.
The court will give permission only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.
14
Q
what is the rule for evidence at hearings other than a trial?
A
the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.
At hearings other than the trial, a party may rely on the matters set out in—
(a) his statement of case; or
(b) his application notice, if the statement of case or application notice is verified by a statement of truth.
15
Q
Order for cross-examination other than trial
A
Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.
But, if the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.
16
Q
what is the consequence of failing to serve a witness statement or summary?
A
If a witness statement or a witness summary 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.
17
Q
what is a witness summary?
A
A witness summary is a summary of—
- the evidence, if known, which would otherwise be included in a witness statement; or
- if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.
18
Q
A party who is required to serve a witness statement for use at trial but is unable to obtain one, may do what?
A
Apply, without notice, for permission to serve a witness summary instead.
19
Q
unless the court orders otherwise, what are requirements for a witness summary?
A
Unless the court orders otherwise:
- a witness summary must include the name and address of the intended witness.
- a witness summary must be served within the period in which a witness statement would have had to be served.
20
Q
cross-examination on a witness statement
A
Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement, whether or not the statement or any part of it was referred to during the witness’s evidence in chief
21
Q
A witness statement or affidavit may be used only for the purpose of the proceedings in which it is served, unless what?
A
(a) the witness gives consent in writing to some other use of it;
(b) the court gives permission for some other use; or
(c) the witness statement has been put in evidence at a hearing held in public.
22
Q
what is the general rule of inspection of witness statements?
A
A witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs.
23
Q
what are the courts powers for inspection of witness statements?
A
- the court may make a direction that a witness statement is not open to inspection.
- the court may exclude from inspection words or passages in the statement.
24
Q
the court may make a direction for a witness statement to not be open for inspection if it is satisfied that —
A
(a) the interests of justice;
(b) the public interest;
(c) the nature of any expert medical evidence in the statement;
(d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or
(e) the need to protect the interests of any child or protected party.
25
what are the consequences for false witness statements?
Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.
26
when must evidence of affidavit be used?
Evidence must be given by affidavit, instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.
a party may request in any other case but will bare the cots of doing do
27
what is a notice to admit facts?
A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.
A notice to admit facts must be served no later than 21 days before the trial.
28
notice to admit a document
A party shall be deemed to admit the authenticity of a document disclosed to them unless he serves notice that he wishes the document to be proved at trial.
29
Where the other party makes any admission in response to the notice the admission may be used against him only—
(a) in the proceedings in which the notice to admit is served; and
(b) by the party who served the notice.
30
when may a notice to prove a document be served?
(a) by the latest date for serving witness statements; or
(b) within 7 days of disclosure of the document,
whichever is later.
31
amplifications of evidence. Commentary 32.5.2
- Obvious circumstances in which witnesses may wish to amplify their witness statement and give evidence as to new matters are where events occur, or matters are discovered, after their statements were served, or where responses to matters dealt with in witness statements of witnesses of other parties are required.
- A late, unjustified change of tack may be regarded as an injustice to the opponent which, in the light of the overriding objective should not be permitted.
32
what is a witness summons?
A document issued by the court requiring a witness to—
(a) attend court to give evidence; or
(b) produce documents to the court.
33
what can a witness summons require a witness to do?
A witness summons may require a witness to produce documents to the court either—
(a) on the date fixed for a hearing; or
(b) on such date as the court may direct.
The only documents that a summons under this rule can require are documents which that person could be required to produce at the hearing.
34
requirements for a witness summons?
- must be in the relevant practice form.
- there must be a separate witness summons for each witness.
35
when must a a party obtain permission from the court to issue a summons?
(a) have a summons issued less than 7 days before the date of the trial;
(b) have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or
(c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.
36
when is a witness summons issued?
A witness summons is issued on the date entered on the summons by the court
37
where must a witness summons be issued?
(a) the court where the case is proceeding; or
(b) the court where the hearing in question will be held.
38
can the court vary or set aside a witness summons?
Yes.
39
witness summons in aid of inferior court or tribunal
- The court may issue a witness summons in aid of an inferior court or of a tribunal.
- The court which issued the witness summons under this rule may set it aside.
- In this rule, “inferior court or tribunal” means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.
40
time for serving a witness summons
- The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.
- The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.
- it is binding until the conclusion of the hearing at which the attendance of the witness is required.
41
who is to serve a witness summons?
A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.
Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.
42
what is a witness entitled to when being called as a witness?
- travel expenses to and from court.
- loss of earnings etc.
43
what is evidence by disposition?
where evidence is heard and cross examined before the actual hearing takes place.
44
an order for disposition, a deponent shall be examined on oath before who?
(a) a judge;
(b) an examiner of the court; or
(c) such other person as the court appoints.
45
Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to...
...serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
46
the order for a disposition may...
require the production of any document which the court considers necessary for the disposition
47
the order for disposition must...
state the date, time and place of examination
48
what the examiner will do during the disposition examination
- If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.
- The examiner may conduct the examination in private if he considers it appropriate to do so.
- The examiner must ensure that the evidence given by the witness is recorded in full.
49
The examiner must send a copy of the deposition—
(a) to the person who obtained the order for the examination of the witness; and
(b) to the court where the case is proceeding.
50
The party who obtained the order must send a copy of the deposition which he receives from the examiner to who?
each of the other parties.
51
notice of use of disposition at trial
A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.
He must serve the notice at least 21 days before the day fixed for the hearing.
52
what is preferred over the use of disposition?
video link
53
expert evidence introduction. Commentary 35.0.1.
An expert witness may give evidence on, for example, technical or scientific matters, or specialist practice or procedure. They may give their opinion on specific matters in the dispute within their expertise. However, it is not the function of an expert witness to give their opinion on issues of law. Further, “evidence tending simply to provide the expert’s view of the credibility or reliability of a witness is generally inadmissible”
54
what is an expert?
a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.
55
what is a joint expert?
an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings.
56
what is an experts overriding duty?
It is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
57
what must be sought for a party to adduce expert evidence at trial?
the permission of the court
although a party does not need permission to instruct an expert, but they do need permission to adduce the use of that expert evidence at trial.
58
when parties apply for permission from the court to adduce the use of expert evidence, the party must:
1. Provide an estimate of the costs of the proposed expert evidence;
2. Identify the field in which expert evidence is required and, if practicable, the name of the proposed expert
59
expert evidence for claims on the small claims track or fast track
if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.
60
One of factors the court will consider in allocating a claim to the fast track is that oral expert evidence at trial will be limited to:
(i) one expert per party in relation to any expert field; and
(ii) expert evidence in two expert fields
61
general requirement for expert evidence to be given in a written report
Expert evidence is to be given in a written report unless the court directs otherwise.
If a claim is on the small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.
62
what can a party do if they have further questions about an expert's report?
they can send written questions to the experts or joint experts.
63
what are the requirements of written questions to be sent to experts?
(a) may be put once only;
(b) must be put within 28 days of service of the expert’s report; and
(c) must be for the purpose only of clarification of the report, unless in any case
64
when an expert responds to written questions, what will the responses be classified as?
as a part of the expert report.
65
what will happen where a party has put a written question to an expert instructed by another party and the expert does not answer that question, what may the court do?
make an order to the effect —
(i) that the party may not rely on the evidence of that expert; or
(ii) that the party may not recover the fees and expenses of that expert from any other party.
66
Where the parties who wish to submit the evidence (“the relevant parties”) cannot agree who should be the single joint expert, the court may—
(a) select the expert from a list prepared or identified by the relevant parties; or
(b) direct that the expert be selected in such other manner as the court may direct.
67
Where two or more parties wish to submit expert evidence on a particular issue, the court may...
...direct that the evidence on that issue is to be given by a single joint expert.
68
what must be at the end of an expert report?
must be a statement that the expert understands and has complied with their duty to the court.
69
in terms of the instructions given to the expert, what must the report contain?
state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
70
what happens regarding the disclosure of the instructions to the expert?
The instructions shall not be privileged against disclosure but the court will not, in relation to those instructions—
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the expert,
UNLESS it is satisfied that there are reasonable grounds to consider the statement of instructions to be inaccurate or incomplete.
basically, they are not privileged but they have limits to their use
71
may a party use an expert report which has been disclosed by another?
Yes. Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.
72
The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—
(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.
The court may specify the issues which the experts must discuss.
73
The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which—
(a) they agree; and
(b) they disagree, with a summary of their reasons for disagreeing.
74
content of the discussions between the experts.
The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
75
status of the agreement made between the experts.
Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.
76
consequences of failing to disclose an expert report
A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.
77
Experts right to ask court for directions
Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.
Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions —
(a) to the party instructing them, at least 7 days before they file the requests; and
(b) to all other parties, at least 4 days before they file them.
78
what should experts consider?
Experts should consider all material facts, including those which might detract from their opinions.
79
Experts should make it clear—
(a)when a question or issue falls outside their expertise; and
(b)when they are not able to reach a definite opinion, for example because they have insufficient information.
80
what happens if an expert's view changes on any matter which is material to the case?
If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.
81
who should the experts report be addressed to?
the court and not the party who instructed them
82
what must be the contents of an expert report?
- expert’s qualifications;
- details of any literature or other material which has been relied on in making the report;
- a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
- make clear which of the facts stated in the report are within the expert’s own knowledge;
- say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;
- where there is a range of opinion on the matters dealt with in the report, thew report must summarise the range of opinions and give reasons for the expert’s own opinion;
- contain a summary of the conclusions reached;
- if the expert is not able to give an opinion without qualification, state the qualification; and
- contain a statement that the expert understands their duty to the court, and has complied with that duty and is aware of the requirements
83
expert reports statement of truth
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. 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.”
84
cross-examination of experts
Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents).
Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice.
85
Where a party sends a written question or questions direct to an expert, a copy of the questions must...
...at the same time, be sent to the other party or parties.
86
Where the experts are to meet, the parties must discuss and do what if possible?
agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.
87
conditions if, during an experts discussion, the legal representatives do attend—
(i)they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and
(ii)the experts may if they so wish hold part of their discussions in the absence of the legal representatives.
88
If an expert significantly alters an opinion, the joint statement must...
...include a note or addendum by that expert explaining the change of opinion.
89
expert availability and the trial timetable. Commentary 35.0.2
- attempts to introduce expert evidence late in the timetable, or the unavailability of the parties’ chosen experts for the trial window or fixed trial date, will only very rarely be sufficient grounds to vary case management directions or trial dates or grant an adjournment
- Where such an expert was unavailable, a different expert should be instructed.
- the claimant would have possibly greater forensic and logistical difficulties because of the absence of their expert at trial and as the neurologists had met and prepared a joint statement it would be fair for the trial to proceed rather than adopt the defendant’s proposal that the claimant instruct a new expert.
- For an example of the court’s approach to an application to adduce expert evidence after a judgment has been handed down, but before the consequential order has been sealed
90
Judicial assessment of expert evidence. Commentary 35.0.3
- A judge is entitled to prefer the evidence of a witness of fact to that of an expert witness. Where a judge prefers the evidence of a witness of fact over that of an expert witness, reasons justifying the preference should be given.
- it was incumbent upon a trial judge to analyse an expert’s report when it was readily apparent that a figure in the conclusions was a mistake and inconsistent with the body of the report
- Where an expert witness completely disregards their duty to the court by failing to follow the court’s directions, the court may rule that the party may not rely on that expert’s evidence, the effect of which may mean that the party loses the entire action
91
Experts and the ultimate question. Commentary 35.0.4
- Experts may provide evidence on the “ultimate issue” in proceedings, which is to say the matter to be decided by the court
- They may not however determine such issues. It is for the court, on the balance of probabilities, to determine such issues based on all the evidence before it.
92
duty to restrict expert evidence. Commentary 35.1.1
- Expert evidence may only be adduced with the court’s permission
- The court may control expert evidence by not only giving direction as to the issues on which it requires evidence. It may also do so by giving directions as to: the nature of the evidence which it requires to decide those issues; and, the way in which the evidence is to be placed before the court.
- The general power to control evidence may be exercised to exclude evidence that would otherwise be admissible. The power must be exercised to further the overriding objective
93
are experts allow to resolve to hypothetical situations?
Opinion evidence as to what an expert would have done in a hypothetical situation is not permissible
94
expert evidence in small claims
In small claims, expert evidence is unnecessary in the ordinary case in respect of second-hand car valuations because published and reputable valuation guides is sufficient
95
computer science experts
In Clifford v Chief Constable of Hertfordshire [2008] EWHC 2549 (QB), permission for a computer science expert was refused on the basis that the issues in dispute were purely factual.
96
duties and responsibilities of experts. Commentary 35.3.2
1.Expert evidence should be the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation
2.An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise
3.An expert witness should state the facts or assumptions on which their opinion is based. They should not omit to consider material facts which could detract from their concluded opinion
4.An expert witness should make it clear when a particular question or issue falls outside their expertise.
5.If an expert’s opinion is not properly researched because they consider that insufficient data are available then this must be stated with an indication that the opinion is no more than a provisional one
6.If, after exchange of reports, an expert witness changes their view on the material having read the other side’s expert report or for any other reason, such change of view should be communicated (through legal representative) to the other side without delay and when appropriate to the court.
7.Where expert evidence refers to photographs, plans, calculations, analyses, measurements survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
97
courts permission expert evidence. Commentary 35.4.2
Permission to call an expert to testify or to put in evidence an expert’s report may be given in the court’s own case management directions or in response to an application to the court by a party; the court will prompt the parties to consider their intentions regarding the use of expert evidence at an early stage.
The requirement to obtain the court’s permission to adduce expert evidence cannot be circumvented by seeking to adduce expert evidence within or as an annex to a witness statement
98
permission not required where expert not instructed by parties to the proceedings. Commentary 35.4.2.1
- CPR Pt 35 is not a comprehensive, exclusive code. It only applies where expert evidence is to be adduced from an expert instructed by the parties to the immediate proceedings. - Where a party seeks to rely on expert evidence adduced in previous proceedings, they may seek to do so as hearsay evidence. - In such a circumstance the court retains a discretion under CPR r.32.1(2) to exclude it, although it should be slow to do so. It could, however, be properly excluded before trial if to permit a party to rely on it would lead to disproportionate cos
99
test for permission to adduce expert evidence. Commentary 35.4.2.2
- The burden lies on the party seeking to adduce expert evidence to persuade the court that it will assist the court
- The question whether expert evidence is reasonably required to resolve proceedings is inevitably fact-sensitive and should be approached consistently with the overriding objective
- a three-stage test to determine whether expert evidence should be permitted on any specific issue was articulated. In assessing whether to permit such evidence the court should ask the following three questions: (i) is expert evidence necessary to decide an issue, rather than merely helpful? If yes, it should be allowed; (ii) if it is not necessary, will it assist the judge in determining an issue? If it would assist but is not necessary then the court should consider, (iii) if expert evidence on that issue was reasonably required to determine the proceedings.
100
pre-action protocols and disclosure of expert reports. Commentary 35.4.4
- The pre-action protocols for personal injury and clinical negligence encourage parties to identify the need for expert evidence at the stage of investigating the claim, and in fast track personal injury cases in particular to try to instruct a single expert in a particular discipline, rather than one expert per party.
- However, it should be noted that the protocols assume that the claimant will instruct the expert, giving the defendant the opportunity to comment on the identity of the expert in advance, and to ask questions on the report, while the CPR assumes, unless the court orders otherwise, that an expert will be jointly instructed by the parties (although they may write separate letters of instruction).
101
Obtaining further expert evidence. Commentary 35.7.4
- Where the parties give joint instructions to a single expert, whether as a result of a direction given by the court under r.35.7 or as a result of an agreement to that effect between the parties, it is conceivable that one of the parties may be unhappy with the report produced by the single joint expert.
- The question may then arise whether that party should be permitted to instruct another expert with a view to their obtaining a report which will enable them to make a decision as to whether or not there were aspects of the report of the single joint expert which they might wish to challenge.
- hat the fact that a party had agreed to a joint expert, did not, of itself, operate as a bar to him or her then seeking further expert evidence
- If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.
102
party's use of an expert report obtained by another party
It is not necessary for a party to seek permission to rely upon an expert’s report which had been disclosed by a party who had ceased to be involved in the proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose.
103
section 3 Civil evidence Act 1972
Admissibility of expert opinion and certain expressions of non-expert opinion.
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
