EVIDENCE OF FACT (Court may allow a witness if there is good reasons not…
EVIDENCE OF FACT
Court may allow a witness if there is good reasons not to confine witness to w/s to
1) Amplify his w/s and
2) Give evidence to new matter which have arisen since w/s was served
- Obvious Circumstances = events occur or matters are discovered after the w/s was served or where responses to matters dealt with in w/s is required.
- Where a party's witness is allowed to amplify, prejudice to the opponent SHOULD NOT be regarded as routinely remediable simply by an order for costs.
- A late, unjustified change of tack may be regarded as an injustice to the opponent which, should not be permitted in light of the overriding objective.
Note: If w/s have been served on a party but they do not call that witness to give evidence at trial or put the w/s as hearsay evidence, Then any other party may put that evidence in as hearsay evidence
- The 'other party' is not entitled to put the w/s in evidence, the court retains the discretion
- Rule applies where a party wishes to put in as hearsay evidence the whole of a w/s, it DOES NOT allow a party to merely put in some of it.
- If A serves a w/s on B with X's w/s, but does not call witness to give evidence and B puts it as hearsay evidence. A may then apply to court to have X called as witness for cross examination on the statement provided to them. A does not fall foul of the rule that prevents a party from cross examining his own witness.
If court proceeds with trial in absence of a party who have served his w/s, those statements are not hearsay evidence put in by him and relied on in trial.
34.8 - Evidence by Deposition
A party may apply for an order for a person to be examined before the hearing takes place
- Order that a deponent to be examined on oath before a judge, examiner of the court or such other person the court appoints.
- Deponent (person), Deposition (evidence)
- may require the production of any document which court considers necessary for the purposes of the examination
- order must state the date, time and place of the examination
- At time of service of the order, the deponent must be paid a reasonably sufficient sum to cover transport and compensation for loss of time
- If court makes an order for deposition to be taken, it may also order for the party to serve a witness statement or summary in relation to the evidence to be given
34.9 - The examination must be conducted in the same way as if the witness were giving evidence at a trial
- If all parties present and consent, the examiner may conduct examination or a person not named in the order
- Examination can be conducted in private if examiner consider appropriate to do so
- examiner must ensure evidence given is recorded in full
- Copy of the deposition must be send by examiner to the person who asked for the order and to the court where the case is proceeding
- party who asks the order must then send each of the party a copy of the deposition
- Cross examination is allowed but the qs will be put through the examiner.
34.10 - Enforcing Attendance
If a person served with the order fails to attend/ refuses to be sworn or answer any question,
a certificate of his failure or refusal, signed by the examiner must be filed by the party requiring the deposition
- Once the cert is filed, the party requiring the deposition may apply for a court order, without notice requiring the attendance of the witness
- order may ask for payment of any cost resulting from the refusal
34.11 - Deposition ordered may be given in evidence at a hearing.
- A party intending to put in evidence a deposition at a hearing must serve a notice of his intention to every other party. Notice must be served at least 21 days prior to hearing.
- court may order deponent to attend hearing and give evidence orally
- Where deposition is given in evidence at trial, it shall be treated as if it were a w/s (hence open for inspection)
34.12 - Deposition may only be used for the purpose of the proceedings in which the order was made.
However, it may be used for some other purpose
- by the party who was examined,
- if the party who examined agrees or
- if court gives permission
34.2 - Witness Summons
- Document issued by the court requiring the witness to
a) attend court to give evidence or
b) produce documents to the court
- A witness summons must be in a relevant practice form and there must be a separate one for each witness
- A witness summons may require a witness to produce documents to the court either
a) On the date fixed for a hearing or
b) on such a date as the court may direct
- The only documents that can be required to be produced are documents which that person could be required to produce at a hearing
34.3 - Issue of a Witness Summons
- Issued on the date entered in the summons by the court
- Permission must be obtained if a party wishes to
a) have a summons issued less than 7 days before trial
b) Have a summons issued for a witness on any date except date fixed for trial or
c) have summons issued for a witness to attend court at any hearing except trial
- A witness summons must be issued by the court where the case is proceeding or the court where the hearing in qs will be tried.
- Court may vary/ set aside a witness summons issued
34.5 - A witness summon is binding if it is served at least 7 days before the date on which the witness is required to attend court
34.6 - must be served by court unless the party on whose behalf it is issued indicates in writing when he asks the court to issue the summons that he wishes to serve it himself.
- However, it may be binding although served less than 7 days prior to trial.
- A witness summon is binding until the conclusion of the hearing at which the attendance of the witness is required.
- If court helps to serve, deposit must be paid in the court office or the money offered to witness
34.7 - At the time of service, witness must be offered or paid a reasonably sufficient sum to cover his expenses to and fro court and such sum by way of compensation for loss of time
- If a party has served a w/s and wishes to rely on that at trial, he must call the witness to give oral evidence unless the court orders otherwise or the statement is put in as hearsay evidence.
- If a witness is called, the w/s shall stand as his evidence in chief. But court retains discretion to order evidence to be given orally.
If court exercises a discretion to strike out a w/s on grounds that it is irrelevant or for some other reasons, the court is in effect limiting the evidence in chief
32.11 - If a witness is called to give evidence at trial, he may be cross-examined on his w/s, whether or not the statement was referred to in the witness's evidence in chief.
32.4 - w/s needs to be served for use at trial
- written statement signed by a person which contains the evidence which that person would be allowed to give orally.
- Court will order that witness statement that is intended to be relied upon to be served
- Court may give directions as to
1) The order in which w/s are to be served
2) Whether or not w/s are to be filed.
GR: Any fact which needs to be proved by witness evidence is to be proved:
- at trial by their oral evidence given in public and
- at any other hearing, by their evidence in writing
Court can give directions
- Subject to any order of the court
32.3 - Court may allow a witness to give evidence via video link/ other means
- identifying/ limiting the issues
- identifying witnesses who may be called or read
- limiting the length and format of w/s
32.10 - Failure to serve w/s or summary
- the witness may not be called to give evidence unless court gives permission
32.6 - Evidence in proceedings other than trial
GR: witness statement
32.7 - Where at hearing other than trial and evidence is given in writing, any party may apply for courts permission to cross examine the person giving the evidence.
- A party may also rely on matters set out in
a) His statement of case
b) His application notice
if the statement of case/ application notice is verified by a statement of truth
- A witness may choose to give evidence via affidavit, but he may not recover the additional costs of making it.
- If court gives permission and the person does not comply with that order, his evidence may not be used.
32.12 - A w/s may be used only for the purpose of proceedings in which it is served unless
- witness give consent in writing to some other use of it
- court gives permission or
- the w/s has bee put in evidence at a hearing held in public
32.13 - a w/s which stands as evidence in chief is open to inspection during the course of a trial.
- Any person may ask for a direction that a w/s not be open to inspection.
- Court will not make a direction unless it is satisfied that it should not be open to inspection because of
a) interests of justice
b) public interest
c) Nature of any expert medical evidence in the statement
d) Nature of any confidential info or
e) need to protect the interests of child/ protected party
- Court may exclude from inspection words/ passages in the statement
32.18 - Notice to admit Facts
A party may serve notice on another party, requiring him to admit the facts or the part of the case specified in the notice
32.19 - Notice to admit / Produce Evidence
- Notice must be served no later than 21 days before trial.
- If party makes admission to the notice, the admission can only be used against him in the proceedings in which the notice is served and by the party who served the notice
- Court may allow a party to amend/ withdraw any admission made on such terms as it thinks just
Note: Potential cost penalty CPR 44.3 and 44.4
A party is deemed to admit the authenticity of a document disclosed to him unless he serves a notice that he wishes the document to be proved at trial.
- the notice must be served by the latest date for serving the w/s or
- within 7 days of disclosure of document, whichever is later
CPR 32.1 Court may control evidence by giving directions as to
1) Issues on which it requires evidence
2) Nature of evidence required to decide in those issues and
3) The way evidence is to be placed before the court
Court may exclude evidence that would otherwise be admissible and may limit cross examination.
32.9 - Witness Summaries
If a party is required to served a w/s for use at trial but is unable to obtain one,
he may apply without notice for permission to serve the witness summary instead.
- A witness summary is a summary of
a) the evidence, if known, which would otherwise be included in a w/s or
b) if evidence is not known, matters about which the party serving the summary proposes to question the witness.
- witness summary must include name and address of intended witness
- Must be served within the period in which a w/s would have had to be served
32.14 - Proceedings for contempt of court may be brought if a person makes or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth