Witness & Expert Evidence Flashcards
(41 cards)
What are the three main stages of evidence preparation between case management and trial?
- Disclosure and inspection of documents
- Exchange of witness evidence
- Exchange of expert evidence (if required)
What is witness evidence?
Direct evidence by a witness of what they perceived with their own senses. Used at both trial and interim hearings.
What is expert evidence?
Opinion evidence given by a qualified expert to assist the court on matters outside the judge’s own knowledge (e.g. medical prognosis).
What are the three types of admissible evidence in civil proceedings?
- Documents
- Witness evidence (factual or expert)
- Real evidence (physical items)
What power does the court have over evidence?
- Specify the issues, type, and manner of evidence
- Exclude otherwise admissible evidence
- Limit cross-examination
What is a witness statement?
A written, signed statement setting out the evidence the witness would be allowed to give orally.
What is the usual role of the witness statement at trial?
It stands as the evidence in chief. The witness confirms it, is cross-examined, then re-examined.
When are witness statements exchanged?
Following disclosure, and pursuant to a direction by the court at the case management stage.
What happens if a party fails to serve a witness statement in time?
The witness may not be called to give oral evidence unless the court gives permission.
Can the time for serving witness statements be extended?
- Yes, up to 28 days by written agreement, if no hearing is affected
- Otherwise, an application must be made
- Late service requires relief from sanctions
Can the witness amplify their statement or cover new matters at trial?
Yes, with the court’s permission, but not to cure deficiencies or introduce unjustified new arguments.
What should a witness statement contain?
- The witness’s own words
- Facts relevant to the legal argument
- No opinions unless under the ‘perceived facts’ exception
What is the general rule on opinion evidence in witness statements?
It is inadmissible unless:
- It conveys perceived facts
- It is expert opinion
What is the consequence of making a false witness statement
Contempt of court proceedings may be brought.
Can witness statements be used in other proceedings ?
No, unless:
- The court permits
- The witness consents
- The statement is referred to at a public hearing
What must a witness statement include?
- Case heading
- Endorsement (party, witness initials, date, exhibits)
- Opening with name, address, occupation, how prepared
- ‘Information and belief’ paragraph
- Content in own words
- Statement of truth
What are additional requirements for interim hearing witness statements?
- Paragraph stating the application it relates to
- Paragraph stating what the witness asks the court to do
What are the extra requirements for trial statements in the Business and Property Courts?
- Identify documents referred to
- Confirm understanding that statements must not argue the case
- Legal rep must confirm the witness was properly advised and rules complied with
What is an affidavit?
A written statement of evidence sworn on oath, rather than verified by a statement of truth.
When must evidence be given by affidavit?
- When required by a rule, order, or PD
- Commonly in search orders or freezing injunctions
What are key differences in form compared to Affidavit vs witness statement?
- Uses ‘state on oath’
- Ends with a jurat, not a statement of truth
- Sworn before a person authorised to administer oaths
What is hearsay evidence?
An oral or written statement made out of court, adduced to prove the truth of the matter stated.
Is hearsay evidence admissible in civil proceedings?
Yes, but it is treated with caution and subject to procedural safeguards.
When must notice of hearsay evidence be given?
- Not required if the maker will give oral evidence
- Must notify other parties if the maker will not appear and explain why
- Otherwise, formal notice is required
