Witness and expert evidence

Question 1

There are three types of admissible evidence:

Answer 1

1. Documents
2. Witness evidence - (testimony), two types of witnesses:
   (a) Witnesses of fact: direct evidence by a witness of what they have perceived with their own senses. (b) Expert witnesses: evidence of matters of opinion within their expertise.
3. Real evidence - ‘Real’ items that are adduced as evidence.

Question 2

What is a witness statement?

Answer 2

a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

Question 3

general rule - any fact which needs to be proved by the evidence of witnesses at trial…

Answer 3

will be by oral evidence (can also be by video link).

Question 4

Exchange of witness statements is generally the step in the action that follows…

Answer 4

disclosure and inspection.

Question 5

parties can agree in writing extensions of up to…

Answer 5

28 days for serving of witness statements without court approval provided extension does not put a hearing at risk.

Question 6

if an extension of time is agreed before witness statements are due to be served and it has an effect on a subsequent key date…

Answer 6

an application should be made to the court for the extension under CPR 3 to avoid the risk of the court not approving the agreement at trial.

Question 7

if an extension of time cannot be agreed before witness statements…

Answer 7

an application should be made to the court for the extension.

Question 8

If no extension is agreed and witness
statements are served late…

Answer 8

an application would need to be made for relief from sanctions.

Question 9

Rather than the witness statement standing as the only evidence in chief, a witness giving oral evidence at trial may, with the permission of the court…

Answer 9

amplify the witness statement or give evidence in relation to new matters which have arisen.

Question 10

Can court limit cross-examination?

Answer 10

yes

Question 11

general rule is that any fact which needs to be proved by the evidence of witnesses
other than for trial is to be proved…

Answer 11

by their evidence in writing.

Question 12

general rule is that the opinions of witnesses…

Answer 12

are not admissible.

Question 13

There are two situations when opinion evidence is admissible:

Answer 13

1. Perceived facts; and
2. Expert opinion
   (s 3 Civil Evidence Act 1972)

Question 14

A witness statement must be verified by…

Answer 14

a statement of truth.

Question 15

A witness who makes a false statement in the witness statement without an honest belief in the truth of that statement may…

Answer 15

face proceedings for contempt of court.

Question 16

a witness statement may only be used for the proceedings in which it is served unless…

Answer 16

the witness or the court has given permission for some other use or it has been put in evidence at a hearing held in public.

Question 17

Evidence of fact must be given by affidavit (instead of witness statement) if…

Answer 17

this is required by the court or rule.

Question 18

A party may also choose to give
evidence by affidavit at a hearing other than…

Answer 18

trial if they wish to do so.

Question 19

The content of an affidavit is the same as a witness statement, but…

Answer 19

the form is different.

Question 20

A person who gives evidence by affidavit is called…

Answer 20

a deponent.

Question 21

Jurat:

Answer 21

a statement at the end of the document which authenticates the affidavit.

Question 22

A jurat must:

Answer 22

• be signed by all deponents
• be completed and signed by the
  person before whom the affidavit was
  sworn
• contain the full address of the person
  before whom the affidavit was sworn
• follow immediately on from the text and
  not be put on a separate page

Question 23

Is hearsay admissible?

Answer 23

it is admissible in civil proceedings by virtue of s.1 of the Civil Evidence Act.

Question 24

What is hearsay?

Answer 24

• An oral or written statement
• Made out of court
• Which is being adduced in court to prove the truth of the matter stated

Question 25

if a party intends to rely on hearsay evidence at trial and it is in a witness statement of a person who is to give oral evidence at trial...

Answer 25

No formal notice is required. Notice of the hearsay is deemed served when witness statements are served on the other party.

Question 26

if a party intends to rely on hearsay evidence at trial and it is in a witness statement of a person who is not giving oral evidence at trial...

Answer 26

No formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons.

Question 27

In all other cases...

Answer 27

formal notice must be given to the other party identifying the hearsay, stating that the party wishes to rely on it and the reason why the witness will not be called.

Question 28

If notice is not given when it should have been, the evidence will still be admissible...

Answer 28

but the weight the court attaches to it is likely to be less and the offending party may be penalised in costs.

Question 29

4 options on receipt of Notice of intention to rely on hearsay evidence:

Answer 29

-Request particulars of hearsay -call for cross-examination -challenge the weight of the hearsay evidence -attack credibility of an absent witness

Question 30

Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness...

Answer 30

any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them as if they had been called by the first mentioned party as evidence in chief. (application must be made no later than 14 days after the hearsay notice was served).

Question 31

The factors the court will consider when assessing the weight to attach to hearsay evidence include:

Answer 31

(a) whether it would have been reasonable and practicable for the party who adduced the evidence to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously to the matters stated; (c) whether the evidence involves multiple hearsay

Question 32

Where a person wishes to rely on hearsay evidence but does not propose to call the person who made the original statement to give evidence...

Answer 32

the party who has received notice can attack the credibility of the absent witness at trial. (receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served).

Question 33

In civil proceedings, the fact that a person has been convicted of an offence in a UK court...

Answer 33

is admissible in evidence to prove that he committed the offence.

Question 34

if a person is proved to have been convicted of an offence—

Answer 34

(a) he shall be taken to have committed that offence unless the contrary is proved; and (b) the contents of any document which is admissible as evidence of the conviction shall be admissible in evidence for the purpose of identifying the facts on which the conviction was based.

Question 35

a person wanting to prove the contrary (they have not committed the convicted offence)...

Answer 35

will have the burden of proving that the person convicted did not commit the offence on a balance of probabilities.

Question 36

A witness statement must take the form...

Answer 36

set out in the rules and must be in the witness's own words and language.

Question 37

A witness statement is always given by...

Answer 37

a specific individual (not a company or a partnership) and must be signed by that person.

Question 38

Witness statements for use at interim hearings contain...

Answer 38

two brief additional paragraphs.

Question 39

Exchange of expert evidence is generally the step in the action that follows...

Answer 39

exchange of witness evidence.

Question 40

An expert is generally a...

Answer 40

highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.

Question 41

To adduce expert evidence at trial, is a court order required?

Answer 41

yes