Prep 7 Witness and Expert Evidence

Three types of admissible evidence

• Documents

• Witness Evidence (testimony)

• Real Evidence

Real Evidence

Real items that are adduced as evidence

Power of the court to control evidence under CPR 32.1

• Give directions as to issues requiring evidence, nature of evidence wanted and the way evidence is given

• Exclusion of evidence

• Limit cross examination

Court directions for Witness statements

• Limit the issues

• Identify witnesses whose evidence may be used

• Limit number, length or format of witness statements

• Specify order in which statements are to be served

Extending time for service of witness statement

28 days by mutual agreement without court approval (as long as it does not put the hearing at risk

Witness statments for interim applications under CPR 32.2(1)(b)

May given in writing as evidence althought cross examination may be applied for

Questions for deciding relevant content in Witness statements

1. What is the argument?

2. What is the legal basis for the argument?

3. What are the facts that this witness can speak about that support the legal argument?

Inadmissibility of opinion evidence and exceptions under s3, Civil Evidence Act 1972

Opinions of witnesses are not admissible unles they are:

• Expert opinion; or

• Perceived facts

What is an affidavit?

A written statement of evidence that is sworn before a person authrosied to administer affidavits

When must affidavits be used?

• For a search order

• For a freexing injunction

• In any other situation where a rule, practice direction or order requires

What is 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

Admissibility of hearsay under s1 Civil Evidence Act 1995

Hearsay evidence is admissible but treated carefully by the court

When should notice of hearsay be given under CPR 33.2?

When relying on hearsay evidence unless:

• The witness is already given evidence and this includes hearsay

• The evidence is in a witness statement but notice must be given that the witness is not giving evidence themself

Options for a party receving notice of intention to rely on hearsay under CEA 1995

• Request particulars of hearsay (s2)

• Call for cross examiniation (s3)

• Challenge the weight of hearsay evidenec (s4)

• Attack credibility of an absent witness (s5)

Convictions as evidence in civil proceedings under s11 Civil Evidence Act 1968

Proving the offence msut be relevant to an issue in the proceedings but is admissible as evidence that the offence on trial has been committed

Duty to restrict expert evidence under CPR 35.1

The court has a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings

Power of the court to restrict expert evidence under CPR 35.4

The court may restrict expert evidence as it sees fit and parties’ need the courts’ permission rely upon it

Considerations for restricting expert evidence in small claims or fast track cases

• Duty to restrict expert evidence (CPR 35.1)

• Overriding duty to thec ourt (CPR 35.3)

• Court’s power to direct evidence be given by a single joint expert (CPR 35.7)

• Instructions to a single joint expert (CPR 35.8)

Requirements for applying to rely on expert evidence under CPR 35.4(2)

• Estimate of the costs of the propsoed expert evidence

• Identify the field in which the evidence is required and if practicable, the name of the proposed expert

Duty of the Expert (CPR 35.3)

To help the court on matters within their own expertise and this overrides any obligation to help the party instructing the expert

Role of the expert under National Justice Compania Naviera SA v Prudential Assurance Co Ltd

• Independent and uninfluenced

• Never assume the role of the advocate

• Only states facts or assumptions on which opinion is based

• Make it clear when a question or issue falls outside of their expertise

• State whether an opinion is improperly researched due to insufficient data

• Communicate any change of mind

• Provided all supplementary evidence such as photographs, survey reports or plans

Instructing experts under CPR 35.10(4)

Instructions to experts are not priviliged

Requirements for Expert reports under CPR 35.5

• Be addressed to the court

• Set out the experts’ qualifications

• Set out details on any material relied in

• Set out the substance of all the material facts and instructions

• Make it clear that evidence is within expert’s own knowledge

Consequences of failure to exchange expert evidence under CPR 35.13

Evidence cannot be used without the court’s permission

Questions by a party to experts

• Can only be put once

• Should generally be for the purpose of clarifying the report

• Must be submitted within 28 days of service of the report

• Copy must be sent to the other party

• Answers to questions become aprt of the report

• There is no time limit for answering questions unless court orders so

• If the expert does not answer, the court can order not to rely on their evidence and/ or cannot recover expert’s fees from the other party

Questions by experts to the court under CPR 35.14

Expert must:

• Provide the instructing party a copy of propsoed requests at least 7 days before filing at court; and

• Provide all other parties with a copy at least 4 days before filing at court

Discussion between experts under CPR 35.12

Are encouraged to reach an agreed opinion, help save time and costs and specify issues of disagreement

“Hot-Tubbing”

Hearing some or all the evidence of experts from similar disciplines is given concurrently