Civil Evidence

Burden and standard of proof What is the standard of proof in civil proceedings?	On the balance of probabilities.
Who bears the burden of proof?	The claimant.
Competence and compellability of witnesses What is the general rule?	Any person is competent in any proceedings; and All competent witnesses are compellable.
What are the exceptions to this rule?	Children: Any person under 18 who does not understand the nature of the oath may only give evidence if: He understands the nature of the duty to speak the truth; and He has sufficient understanding to justify his evidence being heard. Persons of unsound mind: Any person of unsound mind is competent if: He has sufficient appreciation of the seriousness of the proceedings; and He has a realisation that taking the oath involves something more than the duty to tell the truth in day-to-day life. Sovereigns, heads of State and diplomats: All competent but not compellable.
Hearsay in civil proceedings Is hearsay evidence admissible?	Civil Evidence Act 1995, s1: Yes, evidence should not be excluded by reason that it is hearsay.
What are the conditions for hearsay being admissible?	Civil Evidence Act 1995, s5(1): That the statement maker, and in cases of multiple hearsay all the makers, would be competent to give evidence in court.
On whom does the burden of proof rest for admitting this evidence?	The burden is on the party wishing to exclude the evidence to show that the maker was not competent.
Are previous statements admissible in proceedings?	Civil Evidence Act 1995, s6: Yes, but only with permission of the court. Permission will generally not be granted if the witness will be called, but may be given to rebut an allegation of fabrication or to help the witness recall the event.
When is permission granted?	Where the witness is incapable of giving evidence; or Any evidence that would be given would be unreliable, inconsistent, or not wholly intelligible due to partial memory loss, lapse of time, age, etc.
What is the procedure for adducing hearsay evidence?	A notice must be given to all the parties, and following a request, provide particulars of the evidence.
When is notice given?	Notice is given on the last date the W/Ss can be served, and no later! Notice is not required if the evidence is for a hearing other than a trial.
What should the notice contain?	It should: Identify the hearsay evidence; State that the party serving the notice proposes to rely on hearsay evidence at trial; and Give a reason why the witness is not being called.
In what cases do these rules apply?	In fast track and multi-track cases, but NOT in small-track cases.
What are the consequences of failing to give notice?	An adjournment may be ordered to allow the party to serve notice. A costs sanction may be imposed. The court may reduce the weight of the evidence.
What can a party do if they wish to cross examine a witness not being called?	Civil Evidence Act s3: A party can apply within 14 days to call that witness to cross examine them (r33.4).
What weight will be given to hearsay evidence?	Civil Evidence Act 1995, s4: The court will consider a number of factor: Whether it would have been reasonable or practical to call the witness; When the statement was made in relation to the matter; Whether the evidence involves multiple hearsay; Whether the person had any motive to conceal or misrepresent facts; Whether the original statement was an edited account or made for a particular purpose; Whether the circumstances under which it was adduced suggest an attempt to prevent a proper evaluation of it; and Any failure to give due notice of the adducing of hearsay evidence.
Is evidence relating to the credibility of the statement-maker admissible?	Civil Evidence Act 1995, s5(2): Any evidence of credibility that would have been permitted had the witness been in court is admissible.
What must be done if a party wishes to attack the credibility of the statement-maker?	CPR r33.5: They must serve notice within 14 days of receiving notice that the party intends to rely on this evidence.
How is hearsay evidence adduced?	By producing the record, original document or a certified copy of it. Documents forming part of business records may be adduced without further proof.
Preparation and exchange of witness statements What is a witness statement (‘W/S’)?	A formal document containing a written statement of the facts as that person believes. A W/S must be signed and must contain a statement of truth.
When and how are W/Ss used?	It is a means of adducing evidence at interim applications or trials. A W/S stands as a witness’s evidence-in-chief to save time and costs. However, a witness may amplify his evidence and given additional oral evidence if the court allows.
Are W/S disclosed for interim applications?	Yes. If the hearing is with notice, they are attached to the application notice. If the application is without notice, they are attached and sent after decision is made.
Is XX allowed in hearings for interim applications?	Usually no live evidence is called in a interim application. However, the court may give an order for a witness to be called and XX where the evidence is seriously challenged.
For a trial, when are W/Ss exchanged?	W/S are only usually exchanged in fast and multi-track cases. At the allocation hearing/case management conference, a date will be set by which time that W/Ss must be served on the other parties. The date will usually be a few weeks prior to the date for disclosure of documents.
Are W/S protected by legal profession privilege?	Yes, until they are served, at which point the privilege is waived.
What are the consequences for failing to serve a W/S?	The witness may only be called with permission of the court.
Can a W/S be used for another purpose by another party?	No, unless: The witness gives written consent; or The court gives permission; or The statement has been put in evidence at a hearing in public.
What are the consequences of a false W/S?	Proceedings for contempt of court may be brought against that person.
Res Judicata What is the rule of res judicata?	The rule of res judicata is an estoppel on bring claims or issues to could. It takes three forms: Estoppel by res judicata: Where an issue has already been adjudicated upon by a court the matter has been finally resolved, and a party is estopped from being proceedings on that issue again. Cause-of-action estoppel: A party is estopped from raising in other proceedings an issue that which could have been resolved in an adjudicated case. This is based on public policy. Issue estoppel: Where two parties have been in civil proceedings and judgment has been given, and those same parties or their successors in title, find themselves in proceedings again, they cannot repeat an assertion that has been found to be incorrect by the court in original proceedings. Prohibited assertions include fact, opinion, or the legal consequences of the facts of opinions, which were an essential element of the asserting party’s cause of action or defence in the first proceedings. It applies to both parties, although only if they stand as the same capacity (claimants or defendants) in this case. This estoppel doesn’t apply if new information not previously available can shed light on the correctness of the assertion.
Evidential rules relating to examination in chief (‘XIC’) and cross examination (‘XX’) What questions are allowing during XIC?	Only non-leading questions, except where the issue is not in dispute.
What questions are permitted in XX?	All questions are permitted, but mainly leading questions are used.
What is the rule of finality?	Where a witness is being XXed on a collateral issue, i.e. issues that are not directly relevant to a fact in issue in the case, the answers given by the witness are final and he cannot be questions further on them.
What are the exceptions to the rule of finality?	Questioning can continue after a denial if it concerns one of these issues: Previous convictions of the witness; His bias; A physical or mental disability affecting his reliability; His reputation for untruthfulness (rarely used); and Proof of a witness’s previous inconsistent statement.
How can a previous inconsistent statement be adduced?	You must first put it to the witness that he made this statement in the past, specifically identifying when it was made (Criminal Procedure Act 1865, s4); Should he not agree that he made it, s5 CPA 1865 requires that the document be shown to the witness and the witness asked again about whether he made it. Should he agree that he did make the statement, it becomes part of his evidence insofar as it changes his XIC; If he still doesn't agree he made the statement, the document can be adduced as evidence (CPA 1865, s4).
When and how can previous consistent statement be adduced? What is an unfavourable witness, and what can be done about them?	The general rule is that a previous consistent statement cannot be adduced to prove consistency. However, a previous statement can be adduced if: If the statement is admissible under s6 Civil Evidence Act 1995 (which allows a statement to be put into evidence if it is used to refresh the witness’s memory and then XXed on in detail); The document allowed by the court under s6 CEA 1995; or It is adduced to rebut questions of recent fabrication. An unfavourable witness is one that, displaying no hostility to the party who called them, failed...

#3704 - Civil Evidence - BPC Civil Litigation

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