Witness and expert evidence Flashcards
(169 cards)
1
Q
A
2
Q
Evidence of fact
A
Direct evidence by a witness of what they have perceived with their own senses.
3
Q
Witness statement
A
A written statement signed by a person which contains the evidence which that person would be allowed to give orally.
4
Q
CPR 32.2(1)(a)
A
General rule that facts proved by witnesses at trial will be by oral evidence.
5
Q
CPR 32.3
A
Allows witness evidence to be given by video link.
6
Q
CPR 32.4(1)
A
Defines a witness statement as a signed written statement containing admissible oral evidence.
7
Q
Purpose of exchanging witness statements
A
Saves time and costs at trial
8
Q
CPR 32.5(2)
A
A witness statement usually stands as the witness’s evidence in chief at trial.
9
Q
Trial evidence sequence
A
Evidence in chief (witness statement) > Cross-examination > Re-examination.
10
Q
Court directions for witness statements
A
Usually given at the allocation and case management stage
11
Q
Contents of court directions for witness statements
A
Limiting issues
12
Q
Consequences of not calling a witness after serving their statement
A
The statement can be put in as hearsay evidence (CPR 33).
13
Q
Consequences of not serving a witness statement on time (CPR 32.10)
A
The witness may not be called to give oral evidence unless the court gives permission.
14
Q
Usual order of steps in an action
A
Disclosure and inspection > Exchange of witness statements > Expert evidence.
15
Q
Time extension for serving witness statements (agreement)
A
Parties can agree in writing up to 28 days without court approval if it doesn’t risk a hearing (CPR 28.4 and 29.5).
16
Q
Time extension affecting key dates
A
Requires a court application under CPR 3.
17
Q
Late service of witness statements without agreement
A
Requires an application for relief from sanctions (CPR 3.9).
18
Q
Court’s power regarding evidence presentation (CPR 32.5(3))
A
Can permit a witness to amplify their statement or give evidence on new matters.
19
Q
Limitations on amplifying witness statements
A
Unlikely if it’s a late change of tack or remedies deficiencies causing injustice.
20
Q
Court’s power regarding cross-examination (CPR 32.1(3))
A
The court may limit cross-examination.
21
Q
Evidence for interim applications (CPR 32.2(1)(b))
A
Generally proved by written evidence (witness statements).
22
Q
Cross-examination at interim hearings (CPR 32.7)
A
Requires court permission and is very unusual.
23
Q
Content of a witness statement
A
Should cover every fact the witness needs to prove
24
Q
Determining relevant content of a witness statement
A
Consider the argument
25
General rule on opinion evidence
Witnesses are normally confined to stating facts
26
Reasoning behind excluding opinion evidence
It's the court's role to form opinions
27
Exceptions to the rule against opinion evidence
Perceived facts and expert opinion.
28
Civil Evidence Act 1972
s 3(1)
29
Civil Evidence Act 1972
s 3(2)
30
'Perceived facts' exception
Allows a witness of fact to give opinion evidence as a shorthand way of conveying personally perceived relevant facts.
31
Example of 'perceived facts' opinion ("The car was driving fast")
Admissible if it's a summary of observed facts (loud engine
32
Example of 'perceived facts' opinion ("Leanne was drunk")
Generally admissible as a perceived opinion.
33
Verification of a witness statement
Must be verified by a statement of truth.
34
Consequences of a false statement in a witness statement (CPR 32.14(1))
May face proceedings for contempt of court if made without honest belief in its truth.
35
Use of a witness statement in other proceedings (CPR 32.12)
Only for the proceedings it was served in
36
Summary of court's control over evidence
The court gives directions on required evidence
37
Summary of witnesses of fact
Provide direct evidence of their perceptions
38
Summary of evidence at trial
Oral evidence
39
Summary of exchange of witness statements
Occurs in advance of trial
40
Summary of failure to serve witness statement on time
May prevent the witness from giving oral evidence at trial without court permission.
41
Summary of evidence for interim hearings
Normally in writing only (witness statements).
42
Summary of content of witness statements
Should contain the facts supporting the legal argument.
43
Summary of opinion evidence from witnesses of fact
Generally not permitted
44
CPR 32.8 and 32 PD 17-20
Main CPR and Practice Direction covering the form of witness statements generally.
45
57AC PD
Practice Direction relating to trial witness statements in the Business and Property Courts.
46
Requirements for witness statements
Must comply with certain requirements in terms of content and presentation.
47
Purpose of endorsements on witness statements
Help parties and the Court to identify and navigate through various witness statements.
48
Who gives a witness statement?
Always given by a specific individual
49
Required heading of a witness statement (32 PD 17.1)
Includes the court name
50
Required endorsement in the top right hand corner (32 PD 17.2)
Includes: Party relying on witness
51
Example of a witness statement endorsement
"Defendant, C Harbin, First, CH1-2, 01.01.2022".
52
Contents of opening paragraphs of a witness statement (32 PD 18.1)
Witness name
53
Example of opening paragraphs
I, Cynthia Harbin... Managing Director of the Defendant, will say as follows: ...duly authorised...prepared following face to face discussions with my solicitor.
54
Purpose of the 'information and belief' paragraph (32 PD 18.2)
States the basis of the witness's statements (own knowledge/belief or information from others).
55
Example of 'information and belief' paragraph
I make this witness statement from matters within my knowledge or belief save where the contrary appears...true to the best of my knowledge and the source of the information appears.
56
Language of the witness statement (32 PD 18.1)
Must be in the witness's own words and language (translation provided if necessary).
57
Reference to documents in a witness statement (32 PD 18.3-18.6)
Documents should be verified
58
Example of referring to an exhibit
I refer to my note of the initial meeting attached and marked “CH1”.
59
Required ending of a witness statement (32 PD 20.1-20.3)
Includes a specific form of statement of truth and the witness's signature and date.
60
Example of statement of truth
I believe that the facts stated in this witness statement are true...contempt of court...false statement...without an honest belief...Signed...Dated...
61
Additional paragraphs for witness statements for interim hearings (near beginning)
Confirms the reason for the statement (e.g.
62
Example of additional paragraph for interim hearing (beginning)
I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment.
63
Additional paragraph for witness statements for interim hearings (at the end)
Confirms what the witness wants the court to do regarding the interim application.
64
Example of additional paragraph for interim hearing (end)
In the circumstances, I submit to the Court...that the Defendant is not liable...and that the Claimant’s application for summary judgment should be dismissed.
65
Additional rules for trial witness statements in the Business and Property Courts (57A PD)
Must identify referred documents
66
Summary of witness statement form
Must follow set rules
67
Who signs a witness statement?
Always signed by the specific individual witness.
68
Additional content for interim hearing witness statements
Two extra paragraphs: reason for the statement and desired court action.
69
CPR 32.16 and 32 PD 2-16
Main CPR and Practice Direction relating to affidavits.
70
When is an affidavit required?
If required by the court or rule (e.g.
71
When can a party choose to use an affidavit?
At a hearing other than trial (CPR 32.15).
72
Definition of an affidavit
A written statement of evidence sworn before an authorised person.
73
Verification of an affidavit
Sworn before an authorised person (not a statement of truth).
74
Term for a person giving evidence by affidavit
Deponent.
75
Key difference in heading compared to a witness statement
Uses "AFFIDAVIT OF [Witness Name]" instead of "WITNESS STATEMENT OF [Witness Name]".
76
Key difference in introduction compared to a witness statement
Includes "state on oath" instead of "will say as follows".
77
Key difference in exhibit wording compared to a witness statement
Uses "There is now shown to me marked “[Exhibit Reference]”" instead of "I refer to the [description] marked “[Exhibit Reference]”".
78
Ending of an affidavit
Ends with a jurat instead of a statement of truth.
79
Purpose of a jurat
A statement at the end of the affidavit that authenticates it.
80
Requirements of a jurat
Signed by all deponents
81
Example of a jurat
"Sworn at [full address], On [Date], Before me: Signed [Signature], Commissioner for oaths".
82
Main purpose of affidavits
Serve the same purpose as witness statements (evidence of fact).
83
Key difference in authentication
Affidavits are sworn
84
Mandatory use of affidavits
Required for search order and freezing injunction applications
85
Admissibility of relevant evidence
Generally
86
Exceptions to general admissibility rule
Opinion evidence
87
Civil Evidence Act 1995
s.1
88
Court's treatment of hearsay evidence
Treated carefully as it is indirect and inherently less reliable than direct evidence.
89
Definition of hearsay evidence
An oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated.
90
Example of hearsay evidence
Supervisor repeating a deceased technician's statement about a defective bolt to prove the bolt was faulty.
91
Application of special hearsay rules
Only apply to hearsay evidence to be given at trial.
92
Requirement for notice of intention to rely on hearsay
A party intending to use hearsay at trial must give notice to the other party.
93
Notice when hearsay is in a witness statement of a witness giving oral evidence
No formal notice required; deemed served with the witness statement (CPR 33.2).
94
Notice when hearsay is in a witness statement of a witness not giving oral evidence
No formal notice required
95
Notice in all other cases of hearsay
Formal notice must be given identifying the hearsay
96
Consequences of not giving required hearsay notice
Evidence is still admissible
97
Four options on receipt of a hearsay notice (s.2-5 CEA 1995)
Request particulars
98
Requesting particulars of hearsay (s.2 CEA 1995)
A party can request reasonable and practicable details to help them address issues arising from the hearsay.
99
Calling for cross-examination of the hearsay maker (s.3 CEA 1995)
With court leave (application within 14 days of notice)
100
Challenging the weight of hearsay evidence (s.4 CEA 1995)
Possible at trial; court considers factors like practicality of calling the original maker
101
Attacking credibility of an absent hearsay witness (s.5 CEA 1995)
The receiving party can present evidence of prior inconsistent statements by the absent witness (must notify adducing party within 14 days of notice).
102
Hearsay in plans
photographs
103
Notice rules for plans
photographs
104
Admissibility of convictions in civil proceedings (s.11 Civil Evidence Act 1968)
Proof of a UK court conviction is admissible to prove commission of the offence if relevant to an issue.
105
Effect of a proven conviction in civil proceedings (s.11 CEA 1968)
The convicted person is taken to have committed the offence unless the contrary is proved (burden on that person).
106
Admissibility of documents related to a conviction (s.11 CEA 1968)
Contents of admissible conviction documents (information
107
Admissibility of non-subsisting convictions
Not admissible in evidence.
108
Summary of general admissibility
All relevant evidence is generally admissible.
109
Summary of hearsay definition
Out-of-court statement adduced to prove its truth.
110
Summary of hearsay notice requirement
Provides warning of its use and allows the other party to challenge it.
111
Summary of actions upon receiving a hearsay notice
Request particulars
112
Summary of notice for plans
photos
113
Summary of convictions as evidence
Admissible to prove the offence was committed
114
CPR 35 and 35 PD
Main CPR and Practice Direction covering expert evidence.
115
Three types of admissible evidence
Documents
116
Timing of expert evidence exchange
Generally follows the exchange of witness evidence.
117
Two types of witnesses
Witnesses of fact (direct perception) and expert witnesses (opinion within expertise).
118
Role of an expert
To advise the court impartially on matters within their expertise.
119
Requirement for adducing expert evidence at trial
A court order is required.
120
Guidance for instructing experts
Reflects best practice in complying with CPR 35 and 35 PD.
121
General rule on opinion evidence
Witnesses are normally confined to stating facts
122
Two exceptions to the rule against opinion evidence
Perceived facts and expert opinion.
123
Civil Evidence Act 1972
s 3(1)
124
Who decides who is an expert?
The court ultimately decides.
125
Court's duty regarding expert evidence (CPR 35.1)
To restrict it to that which is reasonably required to resolve the proceedings.
126
Requirement for court's permission to adduce expert evidence (CPR 35.4)
Parties need permission to rely on expert evidence at trial.
127
Likelihood of restricted expert evidence
More likely in small claims track and fast track.
128
Normal expert evidence rules in small claims track
Generally disapplied
129
Fast track limitations on oral expert evidence (CPR 26.6)
Limited to one expert per party per field
130
Normal limit on experts per issue in small claims/fast track (CPR 35.4(3A))
Normally limited to one expert per issue if permission is given.
131
Intermediate track likely limitation on oral expert evidence (CPR 26.7)
Likely limited to two experts per party.
132
Information required when applying for permission for expert evidence (CPR 35.4(2))
Estimate of costs and identification of the field (and proposed expert if practicable).
133
Caution when naming an expert in the directions questionnaire
Risk of needing court permission to change expert and potential disclosure of the first expert's report.
134
Overriding duty of experts (CPR 35.3)
To help the court on matters within their expertise
135
Ikarian Reefer Guidelines (35 PD 2)
Principles for expert evidence including independence
136
Status of the letter of instruction to an expert (CPR 35.10(4))
Not privileged from inspection.
137
Conditions for court to require disclosure/inspection of instructions or cross-examination on them
If the expert's summary of instructions is inaccurate or incomplete.
138
Form of expert evidence (CPR 35.5)
Given in a written report unless the court directs otherwise.
139
Required contents of an expert report
Addressed to the court
140
Privilege of draft expert reports
Generally subject to litigation privilege until the final version is served.
141
Requirement for exchange of expert reports (CPR 35.13)
Must be exchanged to be used at trial; failure to do so requires court permission.
142
Single joint expert
An expert instructed by both parties to save costs.
143
Use of single joint experts
Encouraged in pre-action protocols and often ordered in small claims/fast track.
144
Communication with a single joint expert
Should be copied into all relevant correspondence; joint or copied instructions (CPR 35.8).
145
Court's power to direct a single joint expert (28 PD 3.9)
Likely on fast and intermediate track unless good reason not to.
146
Written questions to experts (CPR 35.6)
Allowed once after report exchange
147
Consequences of expert not answering questions
Court can order the instructing party cannot rely on the evidence or recover fees.
148
Expert's requests for directions from the court (CPR 35.14)
Written requests allowed
149
Service of court orders on experts (35 PD 8)
Instructing party must serve orders requiring action or affecting the expert. Claimant serves on single joint expert.
150
Discussions between experts (CPR 35.12)
Court can direct to narrow issues and reach agreement (joint statement produced).
151
Binding nature of agreements between experts
Do not bind parties unless expressly agreed.
152
Attendance of legal representatives at expert discussions
Not normally allowed unless ordered or agreed; should only answer questions or advise on law.
153
Challenging agreements or competence of an expert
Grounds to argue against acceptance or seek further expert evidence in exceptional circumstances.
154
Referencing content of expert discussions at trial
Not allowed unless parties agree (without prejudice).
155
Oral evidence of experts at trial
Requires court permission.
156
Oral evidence in small claims/fast track
Only ordered if in the interests of justice.
157
'Hot-tubbing' of expert evidence
Concurrent evidence from experts in similar fields on an issue-by-issue basis.
158
Options for unfavourable expert reports
Questions to expert
159
Consequence of not intending to rely on a disclosed expert report (CPR 35.11)
The other party may still rely on it at trial.
160
Ultimate consideration with an unfavourable expert report
Possibility of settlement.
161
Summary of expert opinion
Permitted
162
Summary of court permission for expert evidence
Required to rely on it; court has a duty to restrict.
163
Summary of expert's duty
To help the court
164
Summary of instruction letter privilege
Not privileged but normally not seen by the other side.
165
Summary of expert report
Written
166
Summary of single joint expert
Alternative to separate experts.
167
Summary of questions to experts
Allowed after report exchange
168
Summary of expert discussions
To narrow issues.
169
Summary of oral evidence of experts
Requires court permission.
