#16068 - Evidence In Civil Proceedings - BPC Civil Litigation

Evidence of fact in civil proceedings (CPR 32.1-16, 32.18-19)

32.1, Power of court to control evidence

• (1) the court may control the evidence by giving directions as to:

  • (a) the issues on which it requires evidence;

  • (b) the nature of the evidence which it requires to decide those issues;

  • (c) the way in which the evidence is to be placed before the court.

• (2) the court may use its power under this rule to exclude evidence that would otherwise be admissible

• (3) the court may limit cross-examination

32.2, Evidence of witnesses – general rule

• (1) the general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved:

  • (a) at trial by their oral evidence given in public; AND

  • (b) at any other hearing --> by their evidence in writing.

• (2) that is subject to:

  • (a) any provision to the contrary in these Rules or elsewhere; or

  • (b) to any order of the court.

• (3) the court may give directions

  • (a) identifying or limiting the issues to which factual evidence may be directed

  • (b) identifying the witnesses who may be called or whose evidence may be read; or

  • (c) limiting the length or format of witness statements.

32.3, Evidence by video link or other means

• The court may allow a witness to give evidence through a video link or by other means.

32.4, Requirement to serve witness statements for use at trial

• (1) A “witness statement” is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

• (2) the court WILL order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.

• (3) the court may give directions as to:

  • (a) the order in which witness statements are to be served; and

  • (b) whether or not the witness statements are to be filed.

• [[i.e. court WILL order SERVICE of W/S; MAY order FILING of W/S.

32.5, Use at trial of witness statements which have been served

• (1) IF

  • (a) a party has served a witness statement; AND

  • (b) he wishes to rely at trial on the evidence of the witness who made the statement

  • he MUST call the witness to give oral evidence UNLESS:

    • the court orders otherwise;

    • OR he puts in the statement as hearsay evidence (in accordance with Pt 33 procedure).

• (2) where a witness is called to give oral evidence under (1), his witness statement shall stand as his evidence in chief unless court orders otherwise.

  • see commentary below re witness statement as evidence in chief

• (3) a witness giving oral evidence at trial may, with permission of the court:

  • (a) amplify his witness statement; and

  • (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.

  • (4) the court will give permission under (3) ONLY IF it considers there is ‘good reason’ not to confine the evidence of the witness to the contents of his witness statement.

  • see commentary below re amplification

• (5) [where witness not called or statement admitted as hearsay] if a party who has served a witness statement does not:

  • (a) call the witness to give evidence at trial; OR

  • (b) put the witness statement in as hearsay evidence

  • any OTHER party may put the witness statement in as hearsay evidence.

  • [so if you’ve served a witness statement, and decide not to use it; other side can use it]

  • see commentary below, re witness not called

Commentary 32.5.1, re ‘witness statement as evidence in chief’ 35.2(2)

• this rule builds on r32.1(c) [court’s power to give directions as to way in which evidence is to be placed before the court].

• Parties are required to serve their witness statements on other parties in advance of trial (for purposes of (a) promoting settlement & (b) avoiding surprise).

• AND, in the event of the witness being called at trial their witness statement should normally stand as their evidence-in-chief for purpose of reducing trial time.

• The court retains a discretion and may order that the witness’s evidence, or part of it, should be given viva voce [i.e. oral rather than written].

• The savings in hearing time that should accrue from the practice of allowing witness statements to stand as evidence-in-chief can be dissipated where (as is often the case) the witness statement includes matter that is not relevant to the contested issues.

  • Because court time that should be devoted to XX focussed on those issues can be consumed by time taken on submissions as to which parts of the witness statement are relevant and which are not, and on XX on issues which, though referred to in the witness statement, are of little or no use to the court.

• Where a court exercises its power to strike out of a witness statement tendered at a hearing material contained therein, on the ground that it is irrelevant or for some other reason in effect the court is limiting evidence-in-chief.

Commentary, 32.5.2, Amplification of evidence re 32.5(3) and (4)

• 32.5(4): court will only give permission to amplify w/s or give evidence in relation to new matters, if ‘good reason’ not to confine to contents of w/s.

• These provisions adopt the Chancery approach to what was called ‘supplementary examination in chief’.

• Circumstances eg where witness may wish to amplify their witness statement/give evidence as to new matters =

  • where events occur, or matters are discovered, after their statements were served

  • or where responses to matters dealt with in W/Ss of witnesses of other parties are required.

• If amplification of witness statements at trial is too strictly limited, then there is a risk that: statements will become over-elaborate and that costs of the preparation will be accordingly increased.

• CF, on other hand, if amplification is too readily allowed there is a risk that: statements will fail to deal with important issues.

• Where a party’s witness is allowed to amplify, prejudice to the opponent should not be regarded routinely as remediable simply by an order for costs

• A late, unjustified change of tack may be regarded as an injustice to the opponent which in light of the OO, should not be permitted.

• Mander v Evans: judge not willing to allow party to elaborate in evidence-in-chief on witness statement to remedy deficiencies, but agreeing to try question of law involved as a preliminary issue, thereby not putting party to trouble and expense of preparing supplemental witness statement.

• In the Admiralty and Commercial Courts Guide, it is said that: a ‘supplemental witness statement’ should normally be served where the witness proposes materially to add to/alter/correct/retract from what is in their original witness statement.

  • Permission is required for the service of a supplemental witness statement.

• In some particular procedural contexts, quite prescriptive requirements re filing and exchange of written evidence are to be found, together with provisions expressly permitting the filing of a further witness statement (or affidavit) supplementing previous statements. Eg PD 52D.

Commentary, 32.5.3, Witness not called

• General rule (32.2(1)(a) = any fact which needs to be proved by the evidence of witnesses is to be proved at trial, by their oral evidence given in public.

• Where a party serves a witness statement of one of their witness and wishes to rely on it they must call the witness to give oral evidence, unless (a) the court orders otherwise, or (b) put the statement in as a hearsay statement in accordance with Pt 33 procedure.

• The meaning of ‘unless court orders otherwise’ (32.5(1)) is not immediately apparent

• R32.5(5) states that, if the party does not wish to have the benefit of the evidence by either calling the witness to give evidence at trial or by putting in the witness statement as hearsay then any other party may put in the witness statement as hearsay evidence.

  • The ‘other party’ is NOT entitled to put the witness statement in evidence; the court retains a discretion:

  • McPhilemy v The Times: C not allowed to put in evidence witness statement served by D conflicting substantially with C’s case for purpose of inviting jury to libel trial to conclude that the statement was knowingly fabricated.

• Where a party (C) has served on an opponent (D) a witness statement made by another person (X) but does not call X or put in his witness statement as hearsay evidence and then B puts it in as hearsay evidence (as permitted by 32.5(5)) then C may then apply for court’s permission to have X called as a witness for XX on the statement provided to them.

  • In these circumstances, the terms of r33.4 are triggered [power to call witness for XX on hearsay evidence] and C does not fall foul of the rule that prevents party from XX his own witness.

Commentary, 32.5.3.1, Use of witness statements where party failing to attend trial [i.e. where one of the parties, such as the Claimant or Defendant, doesn’t turn up to trial]

• Where the court proceeds with a trial in the absence of a party who has filed witness statements those statements are not hearsay evidence put in by him and relied on at trial.

• Williams v Hinton: judge not obliged to take account of such evidence.

• I.E. if a party to proceedings does not turn up for trial and the trial proceeds in their absence the judge is not obliged to take account of that party’s evidence

32.6, Evidence in proceedings other than at trial (i.e. interim hearings/applications etc), general rule, is by witness statement)

• (1) subject to para (2), the general rule is that = evidence at hearings other than the trial is to be by ...