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Dispute Resolution - 12- Witness Evidence - Coggle Diagram
Dispute Resolution - 12- Witness Evidence
Two types of evidence
Direct
Oral evidence
of a
witness who saw the facts
Circumstantial
Evidence that
does not directly establish a fact
, but from it, the court can
decide
whether a particular fact existed
Includes
opinion evidence from expert witness
Witnesses in general
How to use witnesses' evidence at trial
Witnesses should provide a
signed WITNESS STATEMENT
setting out their evidence
Statement must be endorsed
with statement of truth
Statement must be
SERVED ON THE OPPONENT IN TIME
(following Court's directions order)
Witness then
attends court
and can be questioned by the other side on the contents of their statement -
cross-examination
Failure to serve witness statement means:
Party
cannot call on that witness to give evidence
UNLESS they have
court permission
If a
good reason
for the failure can be demonstrated, defaulting party
can apply to include the evidence
Determining a Witness' Competency
Witnesses must be
competent to give evidence
Eg person lacking mental capacity would be unable to give evidence
Compelling witnesses
Court serves
witness summons
on witness on
request of party
Witness summons
must be served at least
7 days before hearing
Witness is entitled to
conduct money
for travel, lost time, and lost earnings from solicitors (max £67 for over 4hrs, but additional sums for overnight stay),
Compelled witness may write to solicitors to request increased conduct money
1, Party must send to court a separate summons for each witness to be served, together a
copy for the court
and the
court fee
If a witness statement is served on the other party but
party does not call the witness
Treated by court as hearsay
Other party
can refer
to the statement as hearsay, and may use it to
challenge credibility
Format of a Witness Statement
General - ie if witness is a party to proceedings
Contents
Must only
address facts
- ie not opinion
Sets out in detail the evidence the
witness will give on oath
to
judge in court
Statement of Truth
Must contain a Statement of Truth
Contempt of court if lie in Witness Statement without an
honest belief in its truth
Relationship to the party
Used when witness statement is being used in
support of an interim application
(
as opposed to at trial
)
Will often be produced by party's solicitor
Solicitor here must:
Provide
firm name and address
Confirm the maker of the statment is the
party's legal representative
As the evidence from this witness is not direct, the maker should preface any reference to facts outside of person knowledge with "I am informed"
If Witness Statement is
not made by a party to proceedings
1 and 2 - Usual contents and Statement of Trutth
Relationship to the party must be included
That they have authority to make the statement must be included
The statement is either from their own knowledge or from matters of information/belief
If statements from matters of information/belief,
list source of that info
Exchange of Witness Statments
Under standard directions
Parties must, by a
certain date, exchange witness statements of the witnesses whose evidence they will rely on at trial
Important as:
Getting witness statements helps each party evaluate strength of their and other side's case
Helps plan what questions to ask witnesses at trial to undermine them
Witness Summaries
- If it's
impossible
to obtain a
Witness Statement
before date for exchange of witness statements in Directions Order AND
Court Permission is Given
Must:
Identify the witness
Summarise the factual issues their evidence covers (per the general rule)
NO SIGNATURE NECESSARY
Useful when:
Witness out of country
Witness will not sign a statement
Affidavits
What is it?
Written statement confirmed by oath/affirmation
Different
from
Witness Statement as
Witness statement contains Statement of Truth
Affidavit must be
SWORN
, normally before a
Solicitor
, who confirms the person swore the statement was true
Certain types of applications require affidavits
Eg Freezing Injunctions or Search Orders
Hearsay Evidence
What is it?
"
A statement made otherwise than by a person while giving oral evidence in proceedings which is tendered as evidence of matters stated"
(In other words, statements made outside of court)
A written or oral statement made
otherwise than by a witness
giving their own first-hand evidence in proceedings
, which is
tendered as evidence of the matters stated
and which is
relied on in court to prove the truth of the matters stated
.
May be
oral or written
, as long as
Made oiutside of court
Its purpose is to
prove the truth of what's being stated
Applies to
Witness Statements until Witness comes to court and swears
Second-hand information, where someone is giving evidence about something they didn’t personally witness or experience, but heard from someone else or read in a document.
Evidence at Trial, Hearsay, and Hearsay's change
Witness Statement -> Evidence in Chief
Ceases to be hearsay when claimant's witnesses (who give evidence first)
Swear an oath/affirmation their evidence is true
Confirm their signature is on the witness statement and that their statement is correct -> ceases to be hearsay
Evidence-in-chief is actively presented by the party, whilst-cross examination simply generates witness evidence from the answers
Cross-examination of defendant
Defendant's solicitor/barrister then cross-examines witness,
asking questions
. These questions'
answers from the witness are also evidence
Then once claimant's witnesses are finished,
claimant's solicitors cross-examine defendant's witnesses
Evidence of Witnesses Who Do Not Attend Trial/Court
Treated as
hearsay evidence
Judge places
less weight
on hearsay evidence, as it cannot be cross-examined
In considering how much less weight to apply, judge considers:
Whether it would've been
reasonable/practicable to force the witness
to
attend
;
How
long after the event
the statement was made
Whether the evidence involves
multiple hearsay
(hearsay within hearsay)
Whether the evidence
may be being presented as hearsay to avoid cross-examination
Whether the original statment was
edited
Whether there was any
motive to misrepresent the position
stated in the hearsay/to
conceal facts
Trial judge EXPLICITLY states how much evidence they put on hearsay in their ruling/judgement
PROCESS FOR RELYING ON HEARSAY EVIDENCE
Party wishing to rely on
hearsay must serve notice
on opponent
If witness is coming to trial,
service of the Witness Statement constitute notice
A situation where a witness comes to court and swears on their statement, but their testimony is still considered hearsay, arises when the witness is relying on second-hand information or statements made by others within their witness statement
If witness is not coming to trial,
party must serve formal document giving notice
Defendant's response
Options:
May wish to
attack witness' credibility at trial
May wish to
seek to call witness to trial
(if whereabouts are known)
Process:
Within 14 days of receiving hearsay notice, apply to:
Apply to call the witness to court for trial
Serve a notice of intent to attack the credibility of the hearsay by establishing the witness is biased, untrustworthy, or unreliable
Other evidential issues
Relevant Convictions
A conviction is admissible as
proof the person committed that offence
for a civil trial
Conviction relied on
must be specifically pleaded
Similar fact evidence
A party may rely on
previous incidents or conduct as evidence of similar conduct in the case in question
This evidence is
admissible
as long as it's
relevant
- eg claimant in road traffic case that says defendant disobeyed traffic light
CAN
use the fact defendant's had 9 points in last year on licence for skipped red lights
Notice to Admit Facts
Party can serve
notice to admit facts
onto opponent
NO LATER than 21 days BEFORE TRIAL
(separate from Defence response to particulars of claim)
If opponent doesn't admit, and the facts turn out to be true later, the applicant
may be able to recover costs of proving that fact
,
EVEN IF
they
lose the trial
Notice to admit or produce evidence (Notice to Prove)
If a party
believes document
produced by
opponent
is
inauthentic
Party can
serve a notice to prove the document at trial
Notice must specify document
Must be served (whichever is
later
)
within 7 days of disclosure of the document
OR
last day available for witness statement exchange
If proven wrong - (ie recipient proves authenticity of doc at hearing),
the court may make a costs order
against the applicant
Letter of Request
Used when court in 1 jurisdiction asks court in another jurisdiction to
take evidence on its behalf, usually orally or in writing
- can be used eg if witness in another jurisdiction unwilling to provide a statement
List:
Relevant convictions
Similar fact evidence
Notice to admit facts (
21 days
before trial)
Notice to prove (
7 days
before trial)
Letter of request
Problem witnesses
Problem Witnesses
A party’s barrister will often try to undermine a witness’s evidence through cross-examination.
If a
witness changes their story, the party calling the witness cannot cross-examine
their own witness.
However,
if a witness proves to be more than unfavourable
->
is uncooperative or their evidence is inconsistent with their witness statement
, the party can ask the judge to declare them a "hostile witness".
clear lack of cooperation with the party
If the judge agrees, the party can cross-examine their own witness to show, for example, that the witness has made inconsistent statements in the past.
Inadmissibility of other evidence
Eg
Opinion evidence
EXCEPT FROM
EXPERTS
Evidence that is privileged
Communications that are 'without prejudice'
Evidence protected by
public interest exemption
Any evidence that is
irrelevant
Court may disallow otherwise-admissible evidence under its powers
Opinion evidence - specifics
(lay person)
Lay witnesses cannot give opinion evidence
However,
they may give evidence of facts as perceived by them, which may otherwise seem to be evidence of opinion
Eg their
perception
of speed in a road traffic accident
Cannot go beyond everyday life or first-hand observation
Remember, civil trials are based on 'balance of probabilities' - ie more likely than not - , so if claimant's evidence is
even slightly more believable than defendant's
, they should win