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Dispute Resolution > WS7: Evidence > Flashcards

WS7: Evidence Flashcards

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1
Q

What are the three stages of evidence exchange?

A

Disclosure and inspection
Evidence of witnesses of fact
In some cases - expert evidence

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2
Q

What types of evidence are admissible?

A

Documents
Witness evidence
Real evidence

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3
Q

How many experts are allowed on small claims track?

A

Normally no expert

If needed - single joint expert

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4
Q

How many experts are allowed on fast track?

A

One expert per party giving oral evidence in a maximum of two different fields

Maximum four experts

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5
Q

How many experts are allowed on intermediate track?

A

Oral evidence limited to two experts per party - but in any field

Maximum of four

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6
Q

How do you apply for permission to bring an expert in?

A

In the directions questionnaire
- Provide an estimate of the costs of the proposed expert evidence
- Identify the field in which expert evidence is required and if practicable, name of proposed expert

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7
Q

Why should you be careful when naming a specific expert in DQ?

A

If court orders that that specific expert be used, party will have to return to court for permission to use a different one

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8
Q

What evidence is not admissible / restricted in some way?

A

Opinion
Hearsay
Privilege

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9
Q

What is the duty of an expert?

A

Help court - they have an overriding duty / obligation to the court

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10
Q

What are the guidelines on the duty and role of an expert?

A
  • Expert evidence should be the independent product of the expert
  • Objective, unbiased opinion regarding matters within the expertise of the expert witness
  • Never assume the role of the advocate
  • State facts or assumptions on which their opinion is based – do not omit material facts
  • Make it clear when an issue falls outside expertise
  • If opinion was not properly researched  stated with an indication that the opinion is provisional
  • If an expert changes their mind on a material matter, the change of view should be communicated to the other party
  • Photos / plans / survey reports / other documents referred to in expert evidence must be provided to other side at the same time as the exchange of reports
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11
Q

Is the letter of instruction to an expert privileged?

A

No

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12
Q

Should you include hearsay in a witness statement?

A

No - instead you should call the person as a witness

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13
Q

What form should expert evidence be given in?

A

Written report - unless the court directs otherwise

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14
Q

What should be included in an expert’s report?

A
  • Addressed to the court
  • Set out expert’s qualifications
  • Set out details any material relief on
  • Set out substance of all facts and instructions given to the expert which are material to the opinions expressed in the report
  • Make it clear which of the facts stated in the report are within expert’s own knowledge
  • Explain who carried out any test / experiment give qualifications and say whether this was under supervision
  • Summarise any range of opinion, and give reasons for expert’s own opinion
  • Contain a summary of the conclusions reached by the expert
  • If the expert cannot give an opinion without qualification, state the qualification
  • Contain a statement that the expert understands their duty to the court / has complied with it
  • Statement of truth
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15
Q

Are draft reports of expert evidence subject to litigation privilege? What about the final version of the report?

A

Drafts - yes privileged
Final version - not privileged

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16
Q

What must be done to expert evidence in order for it to be used at trial?

A

Must be exchanged - court can order simultaneous or sequential exchange

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17
Q

When are single joint experts likely to be ordered?

A

Often in small claims / fast / intermediate track, unless there is a good reason not to do so

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18
Q

What can both sides in a dispute do once reports have been exchanged?

A

Parties can put written questions to the other party’s expert

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19
Q

What must go into a witness statement?

A

Endorsements
[complete card]

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20
Q

What rules govern questions from one party to the other side’s expert after exchange of evidence?

A

Can only be put once
For purposes of clarifying the report
Submitted to expert within 28 days of service
Copy of questions sent to other party
No time limit within which the expert must answer qs, unless ordered by court
Answers to questions become part of the report
If expert refuses to answer - court can order that party who instructed the expert cannot rely on their evidence / recover expert’s fees from the other party

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21
Q

Where is most hearsay? What must you do if documents contain hearsay?

A

Documents - you must give formal notice

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22
Q

What must an expert do if it wishes to ask the court for directions?

A
  • Must provide to the party instructing the expert a copy of any proposed request for directions at least 7 days before filing it at court
  • Provide a copy to all other parties at least 4 days before filing it at court
  • Court can direct that a party also be served with a copy of the directions
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23
Q

What must be done if the court makes an order which requires something to be done by an expert / affects the expert?

A

The party instructing the affected expert must serve a copy of the order on the expert

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24
Q

If the court orders the experts to discuss expert issues in dispute, what might the aims of this discussion be?

A

Identify issues in the case
if possible, reach an agreed opinion
Save time and cost at trial
court can specify the issues the experts must discuss
direct that a joint statement should be produced after the meeting which sets out the issues on which experts agree, and those on which they do not

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25
Do agreements between experts during discussions bind parties? What caution should parties exercise?
Only if parties expressly agree to be bound Parties should be careful before refusing to be bound - must be able to explain their refusal, in case it may become relevant
26
What can a party do if they consider that their expert has stepped outside their expertise?
Can argue that agreement should not be accepted by the court The party should adduce further expert evidence if it feels there is a good reason to consider that their first expert has modified their opinion for reasons that cannot properly / fairly support their revised decision
27
What privilege applies to the content of discussions between experts?
Without prejudice privilege - unless parties agree to waive
28
When will the court grant permission to call the expert to give evidence at trial?
In small claims / fast track - permission if it is in the interests of justice
29
What is a common way for the court to direct experts to give oral evidence?
On an issue by issue basis
30
What is hot tubbing?
Where some or all of the evidence of experts from similar disciplines is given concurrently Judge will ask experts, in turn, for their views on the agenda
31
If an expert a party instructs / a single joint expert gives unfavourable expert evidence, what can that party do?
- Put questions to the expert - Seek advice from another expert advisor - if their advice differs substantially from what a party was expecting, party may seek permission to call another expert - if party is NOT given permission to call another expert - that party can use the expert advisor to assist in preparing questions for cross-examination - if there has not already been a direction for the expert to give oral evidence - seek such a direction from the court
32
How can requesting a second expert be penalised?
Costs sanctions / loss of credibility This will only be allowed
33
When are you able to rely on witness summaries?
Only with permission of the court - specific permission for each individual summary needed
34
What is the difference between an affidavit and a witness statement?
* Affidavit – stated on oath * Specific wording for exhibits to affidavits * Concluded with a jurat – authenticating statement in an affidavit * Jurat must be - Signed by all deponents - Completed and signed by the person before whom the affidavit was sworn - Contain full address of the person before whom the affidavit was sworn - Follow immediately on from the text / not be on a separate page
35
What kinds of application need affidavit evidence?
Freezing order Search order
36
What might evidence be needed in affidavit form?
If required by the court or a particular rule
37
What do you need to rely on an expert?
Always need court's permission
38
What is hearsay evidence?
Indirect evidence Written or oral Made out of court Which is adduced to prove the truth of the matter stated
39
Do you need to give notice of hearsay, if the relevant hearsay is contained in a witness statement but the person is going to give oral evidence at trial?
No - no need for formal notice
40
Do you need to give notice of hearsay, if the relevant hearsay is contained in a witness statement but the person is NOT going to give oral evidence at trial?
No formal notice required - other party must be informed that the witness will not be giving evidence at trial, with reasons
41
When DO you need to give formal notice of hearsay evidence?
If evidence will not be detailed at trial / not in witness statement
42
What must be included in a formal notice of hearsay?
Identifying hearsay Stating that the party wishes to rely on hearsay Give a reason why a witness would not be called
43
What are the consequences of failing to give notice of hearsay at the right time?
Evidence is still admissible - less weight is likely to be attached and offending party may be penalised in costs
44
What options does a party have on receipt of a notice of intention to rely on hearsay [includes notice given by serving a witness statement]?
Request particulars of hearsay - reasonable and practicable Call for cross-examination - leave of court needed - application made no later than 14 days after the hearsay notice was served on the applicant Challenge weight of hearsay evidence Attack credibility of an absent witness
45
How can you challenge the weight of hearsay evidence?
* Court can consider the following: - Would it have been reasonable and practicable for the party who adduced the evidence to have produced the maker of the original statement as witness? - Was original statement made contemporaneously to matters stated? - Does evidence involve multiple hearsay?
46
How can you attack credibility of an absent witness?
* Party who received notice can attack credibility at trial * Attack should show that absent witness made previous inconsistent / contradictory statements * Receiving party must notify adducing party of its intention to do this, no later than 14 days after the hearsay notice was served
47
Why is serving a witness statement considered notice of hearsay?
Because in the information and belief paragraph there is a disclaimer about hearsay
48
What will a court need to know about an issue / expert before granting permission?
Costs estimate Field Issues Expert - by specialism or by name
49
Do you need permission to instruct an expert?
No - permission only needed to rely on them
50
When are instruction letters to experts admissible?
If they are incomplete or inconsistent
51
When must specific notice rules be followed for particular types of evidence?
When the evidence is of the following type: Not contained in a witness statement / expert's report Not to be given orally at trial Not subject to notice of intention to rely on hearsay provisions - e.g. plans / photographs
52
Are convictions admissible as evidence in civil proceedings?
Yes - the fact of their conviction is admissible to prove that they have committed the offence Not lapsed convictions Any document admissible as evidence of the conviction is admissible in evidence to identify facts on which the conviction was based
53
What kind of orders are within a court's power to control evidence?
Issues on which it requires evidence Nature of evidence it wants The way evidence should be presented
54
What is the process of witness examination at trial?
Evidence in chief - witness statement Cross-examination Re-examination
55
What may be the consequence of a failure to serve a witness statement in the time specified by the court?
Witness may not be called to give oral evidence unless the court gives permission
56
What is the process for extending time for serving witness statements?
Parties can agree IN WRITING extensions of up to 28 days without court's approval, as long as no hearing date is put at risk
57
When should a party apply to the court to extend the deadline to serve witness statements?
If a key hearing date is imperilled If an extension of time cannot be agreed before witness statements are due to be served
58
When should an application for relief from sanctions be made?
If no extension agreed and statements are served late Court will consider the CPR when they are judging if they should allow witnesses to serve oral evidence
59
Can a witness who is giving oral evidence at trial amplify witness statement or give evidence in relation to new matters if they wish?
Only with permission of the court - and the court is unlikely to allow this if it is a late or unjustified change of tack or done in order to fix issues in the case
60
What are the two exceptions to the general rule that the opinions of witnesses are not admissible?
Perceived facts Expert opinion
61
Is hearsay admissible?
Yes - but can be criticised
62
Describe the overall structure of a witness statement
1) Heading 2) Endorsement of person details 3) Opening paragraphs a. General information b. Process through which the statement was prepared 4) Information and belief paragraph 5) Can refer to documents – reference exhibits if relying on external documents 6) Statement of truth 7) Signature
63
What two key paragraphs should be added to a witness statement for an interim hearing?
Another paragraph near beginning after information and belief paragraph, confirming reason for statement Paragraph before statement of truth - confirming what witnesses would like the court to do in relation to each particular interim application
64
What particular rules apply for witness statements in the Business and Property Courts?
* Statement must identify what documents the witness has referred to for the purpose of providing evidence set out * Signed confirmed that witness understands purpose of statement is not to argue a case / take court through documents in a case * Statement must include a confirmation from a legal representative that rules have been complied with
65
What are the contents of a formal notice of hearsay?
Identify the hearsay in a document State that the party wishes to rely on it Explain why that witness will not be called
66
Can an affidavit be given by a company?
No - must be given personally

Dispute Resolution (9 decks)

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