#5629 - Evidence - Civil Litigation

The general rule is that everything is admissible if it is relevant to the facts. There are special rules, however, concerning some sections of evidence.

The general rule is that the witness must only give evidence of facts NOT opinion. There are two situations were opinion evidence is admissible:

1. Perceived Facts – s3(2) Civil Evidence Act 1972

   1. An example of a perceived fact is that the “car was driving fast”. This is obviously a subjective point, but it was perceived, and so is admissible. A statement “the car was driving far too fast” is not.

2. Expert Opinion – s3(1) Civil Evidence Act 1972

   1. Remember, the expert isn't deciding for the court, he is providing opinion evidence in his area of expertise.

   2. Admiral Management – a properly qualified expert is not necessarily disqualified if they are employed by the client, but generally you cannot bring your own employee – only in extreme cases.

This is indirect evidence, whether written or oral. Section 1 Civil Evidence Act 1995 states that all hearsay evidence is now admissible in civil proceedings.

Definition: hearsay evidence is evidence made out of court, which is adduced in court to prove the truth of the matter stated. There are three components:

1. Written or oral statement

2. Made on a previous occasion (out of court)

3. Adduced in court to show that the statement is true

Hearsay may be first hand or multiple:

• If you are going to rely on hearsay, you must give notice of intention to rely on hearsay evidence – s.2 CEA. This must be couple with the reason the witness won’t be at trial (CPR 33.2(1)).

• The effect of failure to serve notice is NOT that evidence is rendered inadmissible, but rather that it can have an effect on the weighting of the evidence, and any costs orders made in relation to it.

Witness Evidence – CPR 32

A witness statement is a written statement which is signed by a person, and containing the evidence that the PERSON IS ALLOWED TO GIVE AT TRIAL (CPR 32.4).

A witness will generally not be allowed to give oral evidence at trial unless a witness statement has been exchanged with the other side beforehand (the idea being that it gives the other side notice of what evidence you will be using).

Witness Summaries – if the witness is hostile and won’t talk to you, but you intend to call them at trial, CPR 32.9 allows you to apply to court w/o notice for permission to serve a witness summary containing the evidence required].

See p.18 precedent materials

• Content – work backwards – 1. What is your argument? 2. What is the legal basis? 3. What is the fact? 4. What must the witness prove to validate the fact?

• Style – first-person and using the words the witness would use.

• Form – this is set out in CPR 32.8 (learn this properly – emphasis given in lecture)

When a witness statement is drafted, it falls under litigation privilege as its only purpose is for litigation. This privilege is waived when it is given to the other side.

The parties must comply with court directions given for exchange of witness statements.

• CPR 32.10 – if a witness statement is not served within the specified time, the witness may not be called to give evidence unless the court gives permission.

• Provided the direction for exchange does not contain a penalty (or key date – CPR 29.5), you can try to agree an extension with the other side should you need one – CPR 2.11 and PD 29.6.5.

If you are concerned that a witness may not attend trial, you could ensure their attendance by serving a witness summons on that witness (CPR 34.2-7) at least 7 days before court attendance date.

Expert Evidence – CPR 35

CPR 35.3 states that the foremost duty of the expert is to help the court on matters within his own expertise. This duty overrides obligation to the paying party from whom he has received instructions.

A party can only use expert evidence with the court’s permission (CPR 35.4).

• The duty of the court: CPR 35.1 – the restrict expert evidence to that which is reasonably required by the case.

• Single Joint Experts – CPR 35.7-8:

  • Rather than each party instructing its own expert, the parties can agree to appoint a single-joint expert. Even if they do not agree, the court can decide alone to permit one.

  • Pre-action protocols encourage the use of SJE’s where appropriate.

This is governed by the Protocol 18.3 for the Instruction of Experts to give Evidence in Civil Claims.

• The Protocol stresses the need to carefully define the scope of an expert’s terms of appointment.

• Discussions/meetings between experts – CPR 35.12 – the court has the power to order a discussion, in order to identify/discuss the issues agreed upon and the outstanding issues. ENSURE THEY ARE WITHOUT PREJUDICE.

  • If the experts do meet, then solicitor can only attend if both sides are present or the court has ordered you to. Your role would be to clarify the law and answer the legal issues/issues of case.

    • The advantages of attending would be to provide moral support for your expert and be able to better instruct your client on the discussions.

    • The disadvantage is that your presence ups the ante of the discussion and makes the situation more adversarial. It also increases costs.

• Can an expert act negligently – experts immunity has gone and they must provide a standard of reasonable care.

The instructions received by an expert/referred to in the expert’s report are not privileged against disclosure. However, the court won’t order disclosure of such materials unless it is satisfied that the statement of instructions is inaccurate (CPR 35.10(3)-(4)). It is therefore important that you draft the letter carefully!

The letter should contain:

• Basic information (names, addresses, DOBs, dates)

• Nature and extent of expertise required

• Purpose of requesting advice

• Statement of case and other relevant documents

• An outline programme for the completion and delivery of each stage of the work required

  • Explain any delays

• Dates of forthcoming proceedings, name of court etc.

• The expert’s duty to the court – CPR 35.3

• What to put in the report (see below)

CPR 35.5 states that expert evidence must be given in a written report. The report must be in the form required by PD 35:

• Be addressed to the court, not the instructing party

• Set out the substance of all the facts/instructions given to the expert which are material to the opinions given

• If there is a range of opinion, summarise the range of opinion and give reason’s for own opinion of expert

• Contain a statement that the expert understands his duty to the court and that he has complied with it.

The expert report is privileged until exchanged, at which point privilege is waived (litigation privilege).

CPR 35.6 states a party can put written questions to another party’s expert, or to the single expert (if applicable). Such questions can only be put once.

CPR 35.14 - Experts...