Civil Litigation

Evidence – Civil Litigation – SQE1 & SQE2 Exam

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Evidence
Admissibility
• General rule: all evidence that is relevant to the facts is admissible in civil
proceedings. There are special rules, however, governing:
o Opinion evidence
o Evidence which is privileged
o Hearsay evidence
Opinion evidence
• All relevant facts are admissible, but opinion is not
• Opinion is admissible where:
o Opinion amounts to perceived facts (s 3(2) CEA 1972) – something the
witness has personally experienced
§ E.g. the car was driving fast = opinion derived from what he heard /
saw
o Expert opinion (s 3(1) CEA 1972) – expert opinion justified where without
such assistance the court would be unable to draw proper inferences
§ The court has discretion to decide who is an expert – no formal
qualifications required (Barings)
§ Expert evidence must be independent, and the court can declare such
expert evidence inadmissible (CPR 3)
Hearsay
• The best form of evidence is direct oral testimony from a witness capable of being
cross examined
o Anything less than this will affect the weight given to such evidence by the
court
• It is admissible by virtue of s 1 CEA 1995
• Hearsay evidence is indirect evidence; it is:
o An oral or written statement
o Made out of court
o Being adduced in court
o + if the purpose of the evidence is to prove the truth of the matter stated,
then the evidence is hearsay
• E.g. “the bolt was worn away” stated by technician who died to lab supervisor;
restated by lab supervisor to back up evidence that bolt was faulty in negligence
claim against bolt company
© Liam Porritt 2020 2
Procedural safeguards
• Notice of intention to rely on hearsay evidence at trial must be given to the other
side (s 2 CEA 1995)
• CPR 33.2(1) – if evidence contained in witness statement, no formal notice is
required, as exchange of witness statements is sufficient
• CPR33.2(2) – if evidence in witness statement of a person not being called to give
oral evidence, no formal notice is required but the other party must be informed
that the witness will not be giving evidence at trial w/ reason why not attending
• Failure as to notice ≠ inadmissible, but likely less weight
Challenging hearsay
In response to notice, party may:
• S 2 CEA 1995 – other side may ‘request particulars’ of or relating to hearsay
evidence such as are ‘reasonable and practicable’
• S3 CEA 1995 – where hearsay evidence by a person not called as witness, other party
may call that person as witness + cross-examine him as if called as a witness and as if
hearsay statement was his evidence in chief (CPR 33.4(1))
• S 4 CEA 1995 – challenge the weight the court attaches to hearsay; factors
considered:
o Reasonable to produce maker of statement as witness
o Statement made contemporaneously with matter stated
o Multiple hearsay
o Motive to misrepresent
o Statement is an edited account
o Adducement as hearsay attempting to prevent its proper evaluation
• S 5 CEA 1995 – attack the credibility of the absent witness, giving notice of intention
to do so ≥ 14 days after hearsay notice served (CPR 33.5)
© Liam Porritt 2020 3
Witness statements
• Witness statement is a written statement signed by a person, containing all evidence
that person would be allowed to give in oral evidence in court (CPR 32.4)
• Should be in the words of the witness from his viewpoint
• Witness statement is his evidence in chief (CPR 32.4(2)), but he is still required to
attend trial
o To confirm truth of statement
o And to be cross-examined
• Failure to serve witness statement within time specified by court = witness may not
be called to give oral evidence unless the court gives permission (CPR 32.10)
o If not able to exchange witness statement on time, make in-time application
or relief from sanctions application
• Where critical witness will not give statement, may apply to court for permission to
serve a witness summary (CPR 32.9):
o Witness’s name and address
o Evidence / areas about which propose to question witness at trial
• If witness dies following statement before trial, it becomes hearsay as he cannot be
cross examined
© Liam Porritt 2020 4
Expert evidence
• Admissible under s s 3(1) CEA 1972 – expert opinion justified where without such
assistance the court would be unable to draw proper inferences
• CPR 35.3 – indicates the independence of the expert
o It is the duty of experts to help the court on matters within their expertise
and this duty overrides any obligation to the person from whom experts have
received instructions or by whom they are paid
• Expert evidence may only be adduced with the permission of the court (CPR 35.4(1))
o Obtaining expert evidence before permission = at client’s own risk as to costs,
unless permission of pre-action protocol
• Expert reports must be exchanged ahead of trial if to be used at trial
o Failure to do so means the evidence may not be relied on unless the court
gives permission
• Duty of court to restrict expert evidence to that which is reasonably required by the
case (CPR 35.5(1))
• Party must give:
o Field of expert + name if known
o Estimate of costs (35.4(2))
o List of issues to be addressed by experts
• Expert evidence usually in written form (35.5(1))
Steps to find an expert
1. Consider directories of experts and consult with solicitors within the firm who have
experience of finding experts
2. Check the expert’s past experience – judgments on the quality of their evidence
given in past trials
3. Ensure expert is not conflicted and is available, both to produce a report, carry out
any necessary tests and appear at trial
4. Try to instruct your expert early in the process
5. Ensure the witness is likely to be an effective expert witness by ensuring the expert
report is well-written and that the expert stands up to oral questioning
© Liam Porritt 2020 5
Contents of expert report
• 35 PD 3 sets out form of expert report:
o Addressed to the court
o Set out expert’s qualifications
o Set out material relied on
o Set out facts and instructions given to expert
o Make clear which facts are within expert’s own knowledge
o Explain who carried out any test or experiment
o Summarise the range of opinion
o Summarise conclusions
o Contain statement that expert understands and has complied with duty to
the court
Single joint experts
• Serves overriding objective – lessens costs + reduces dispute between the parties
• Invariably favours one side, and thus parties generally seek own experts
• Courts consider the factors under 35 PD 7:
o Value of case
o Importance to parties
o Complexity of issue
o Speed + cost-effectiveness of SJE
o Range of expert opinion vs established area of knowledge
o Prior instruction of experts by one party + compliance with pre-action
protocol
o Privilege
• Selection generally by one party putting forward 2-3 experts, and the other party
agreeing to one of these
• If disagreement, the court may instruct an expert
• Parties generally send a joint letter of instruction
Unhappy with SJE?
• If the party is unhappy with the expert advice given by SJE, the client may:
o Question the expert (CPR 35.6)
o Instructing an expert advisor – permission of court required to make into
expert witness (CPR 35.4)
o Cross-examining the SJE
o Considering settlement
© Liam Porritt 2020 6
Following exchange of expert reports
• CPR 35.6 – written question to other party’s / SJ expert (usually by hiring own
advisory expert to formulate questions), only once and within 28 days of service of
the expert report
o Failure to reply = court can order that expert evidence cannot be relied on /
party cannot recover expert’s costs from other party (CPR 35.6(4)(b))
• CPR 35.14 – experts may submit written requests for directions to the court to help
them
• CPR 35.12 – discussions between experts:
o discuss issues of disagreement + to try to find common ground (35 PD 9.2)
o further overriding objective by narrowing down issues that cannot be
resolved + summarise the reasons for disagreement
o Nature of discussions:
§ Solicitors may be present if court orders or parties and experts agree
(CPR 35 PD 9.4)
§ Without prejudice unless parties agree otherwise (CPR 35.12(4))
§ Where experts reach agreement, parties are not bound unless the
parties agree (CPR 35.12(5))
• 35 PD 9.6 – joint statement dealing with agreement; reasons for disagreement;
action to resolve disagreement; further material issues
o Signed by experts within 7 days
o Copies provided to parties no later than 14 days after signing
• Changing an opinion following report –such a change must be communicated to the
other parties without delay + court informed where appropriate (35 PD 2.5)
Where happy with expert report – Notice to admit facts
• Party may serve notice to admit facts on other party requiring him to admit facts or
part of the case, served no later than 21 clear days before trial (CPR 32.18)
• In the making of costs orders, the court will take into account whether it was
reasonable for a party to contest and allegation and the manner in which that is
done (CPR 44.2(5)(b)+(c))

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