Witness evidence

Question 1

Facts in issue must be proved by

Answer 1

admissible evidence

Question 2

General rule for witness evidence at trial

Answer 2

given orally

Question 3

A witness statement

Answer 3

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

Question 4

Purpose of a witness statement

Answer 4

exchanged with the other parties to save time and costs and helps to facilitate settlement

usually stands as the witness’s evidence in chief at the trial so the witness will be asked to confirm the truth of the contents of the statement in the witness box

Question 5

Main purpose of a witness attending trial

Answer 5

other party’s counsel can cross-examine the witness

Question 6

If a party has served a witness statement of a witness and wishes to rely on it, the party must either:

Answer 6

call the witness to give oral evidence at trial; or
put in the statement as hearsay evidence

Question 7

Extensions for witness statements

Answer 7

parties can agree in writing extensions of up to 28 days for serving (and filing, if ordered) of witness statements

Question 8

If no extension is agreed and witness statements are served late, an application would need to be made for

Answer 8

relief from sanctions

Question 9

Witnesses at interim hearing

Answer 9

Generally, the witness does not ‘give evidence’ in person at the interim hearing and is not cross-examined, the court relies solely on the witness statement

Question 10

General rule for witnesses’ opinions

Answer 10

not admissible

Question 11

When is opinion evidence admissible?

Answer 11

Perceived facts (eg “the man was drunk”); and
Expert opinion

Question 12

Witness statements must be verified by

Answer 12

a statement of truth

Question 13

Consequence if witness knowingly makes false statement

Answer 13

contempt of court

Question 14

Additional requirements for trial witness statements in the Business and Property Courts

Answer 14

As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case. The statement must include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.

Question 15

An affidavit

Answer 15

a written statement of evidence that is sworn before a person authorised to administer affidavits (rather than verified by a statement of truth). Same content as witness statement but different form.

Question 16

When must an affidavit be used?

Answer 16

in an application for a search order or a freezing injunction, and in any other situation where a rule, order or PD requires it

Question 17

Deponent

Answer 17

A person who gives evidence by affidavit

Question 18

Jurat

Answer 18

equivalent of a statement of truth for an affidavit

Question 19

Is hearsay evidence admissible in civil proceedings?

Answer 19

Yes

Question 20

hearsay

Answer 20

An oral or written statement made out of court, which is being adduced in court to prove the truth of the matter stated

Question 21

If a party intends to rely on hearsay evidence at trial, what must it give to the other party?

Answer 21

it must give notice to the other party that it intends to rely on hearsay

Question 22

Do you need to give specific notice of hearsay in a witness statement if the witness will give oral evidence at trial?

Answer 22

No, notice of the hearsay is deemed served when witness statements are served on the other party

Question 23

Consequences where notice of hearsay is not given but should have been

Answer 23

the evidence will still be admissible, but the weight the court attaches to it is likely to be less and the offending party may be penalised in costs

Question 24

4 possible responses to notice of intention to rely on hearsay

Answer 24

Request particulars of hearsay
Call for cross-examination
Challenge the weight of hearsay evidence
Attack credibility of an absent witness

Question 25

Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness, what can the other party tactically do?

Answer 25

with the leave of the court, they can call that person as a witness and cross-examine them on the statement as if the hearsay statement was the evidence in chief

Question 26

Deadline to apply to call a hearsay witness for cross-exam

Answer 26

application must be made no later than 14 days after the hearsay notice was served on the applicant

Question 27

Attack credibility of an absent witness

Answer 27

the party who has received notice can attack the credibility of the absent witness at trial by showing that the absent witness made previous inconsistent or contradictory statements

Question 28

Deadline to give notice of intention to attack credibility of absent witness

Answer 28

Intention must be given within 14 days of the hearsay notice being served

Question 29

Convictions as evidence in civil proceedings

Answer 29

The fact that a person has been convicted of an offence in a UK court is admissible in evidence to prove that he committed the offence

Question 30

An affidavit opens with the deponent stating

Answer 30

"I state on oath"

Question 31

When does exchange of witness statements usually take place?

Answer 31

Immediately after disclosure and inspection