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EVIDENCE STAGE, EVIDENCE STAGE - Coggle Diagram
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STANDARD DISCLOSURE
Ordered by court + most commonRequires party to disclose only documents on which he relies AND documents which adversely affect his own case / another party’s case / support another party’s case / required to disclose by a relevant practice directionTest
1. Is it a document?
- Digital recordings / Emails / Photographs / Text / Voicemails / Metadata
2. Is/was document in the party's control ?
- in the physical possession OR party has right to possession OR party has right to inspect / take copies of the document
3. Does it fall within standard disclosure definition stated above?
- met if document satisfies even 1 of criteria
- Whether satisfied is determined by considering issues in dispute
- Documents could be relevant in BUT if not support / undermine either side's case = no need to be disclosed
Reasonable search
FOR standard disclosure order to be made, party must make reasonable search for documents
Reasonable spends on: number of documents / nature and complexity / difficult/expensive it is to retrieve any document / significance of any document / overriding principle
Disclosure listStandard disclosure is performed by each party making a list of required documents + serving it on other party stating either:1. I have control of docs...I do not object to you inspecting them/producing copies2. I have control of docs... but I object to you inspecting them [due to privilege]3. I have had docs...but they are no longer in my controlDisclosure list includes disclosure statement that:
- sets out the extent of the search made
- certifies party understands its duty to disclose documents + has carried it out
- include details of any docs where inspection is disproportionate
- signed by the disclosing party (is company = by appropriate officer)
- solicitor must ensure person making it understands the duty of disclosure
- party may not rely on any document he fails to disclose
- IF FALSE = Proceedings for contempt of court may be brought
INSPECTION
A party has a right to inspect a document that has been disclosed except where:1. Document is no longer in disclosing party's control2. Allowing inspection would be disproportionate
- IN case of certain category/class of docs = it must be stated in disclosure statement that inspection is not permitted
- BUT inspection cannot be refused if reason = party will rely on it / practice direction requires disclosure.
3. Disclosing party has a right / duty to withhold inspection (privilege)
- Existence has to be disclosed > only withheld from inspection
1. RedactionBlanking out parts of a document which are confidential and commercially sensitiveALLOWED IF:
- There is a clear + distinct part of document with privilege, but remainder w/out = privileged part can be redacted to avoid waiving privilege
- Information totally irrelevant to dispute = redacted
2. Waiver
Party allows inspection of privileged document if helps its case
a. Waiver of privilege in part of a wholly-privileged document = waiver of privilege over remainder UNLESS it deals with entirely different subject matter
b. Waiver of privilege in 1 document = privilege lost in others if would be unfair to allow party waiving privilege NOT to put those documents before the court / opponent too
ONCE privileged, always privileged = privileged in one set of proceedings > privileged in all proceedings
IF dispute over if doc is subject to privilege = burden of proof on party claiming privilege to establish it
Documents referred to in statements of case and other specified documents
-Party can inspect document referred to in statement of case / witness statement / witness summary / affidavit / expert's report UNLESS subject to priledge
Procedure for inspection
- Party wishing to inspect doc must send written notice to other side who must allow inspection within 7 days of receipt of notice
- Possible to ask for copies instead / as well with an undertaking to pay reasonable photocopying charges (reeving copy = inspection)
- Party CANNOT rely on any doc in if he fails to permit inspection unless court gives permission
TYPES OF PRIVILEGE
1. Legal advice privilegeDocument which is confidential communication between lawyer + client + was prepared for dominant purpose of giving / receiving legal advice
- Litigation NO need to be contemplated
a. Confidential = client should be able to get legal advice in confidenceb. Communication between lawyer and client = solicitor's note of conversation with client concerning legal advice = confidential + subject to privilege BUT solicitor's attendance note of conversation between parties / what happens at court = not privileged c. For the dominant purpose of giving/receiving legal advice = solicitor retained for legal advice so wider communications between solicitor and client / client repeats legal advice to company members / in-house lawyers communicating in legal capacity = privileged
2. Litigation privilege
Document = confidential communication passed between lawyer + client OR between one of them and 3P, where dominant purpose in creating document is to obtain legal advice/ evidence / information for use in prospect litigation
a. Confidential = client should be able to get legal advice in confidence
b. Communication between lawyer and client = privilege extends to documents brought into existence to prosecute / defend claim
c. Communication between lawyer / client and 3P = between a solicitor / client and witness
d. The dominant purpose is evidence/advice for litigation = If < 1 purpose: court will look at dominant purpose so test of dominance NOT exclusivity
e. Litigation reasonably in prospect = real likelihood NOT mere possibility SO general apprehension of future litigation is insufficient.
3. Without prejudice communications
Document = purpose is genuine attempt to settle dispute
Substance not form = need not be marked 'without prejudice' for privilege to apply BUT if marked it still may not be a genuine attempt to settle + need to be inspected
NOTseen by court unless privilege is expressly waived
SPECIFIC DISCLOSURE AND INSPECTION
Used to obtain information from the opponent / intended opponent, after proceedings have started
Specific disclosureOrder that party must do 1 or < of:
- Disclose documents / classes of documents specified in the order
- Carry out a search to extent in order
- Disclose any documents as result of searchTiming = court can make order at any time after proceedings have been issuedUses
- Opponent has not complied with existing disclosure obligations
- Applicant wants documents earlier than current directions provide for
- Applicant wants something more than current directions provide for
SUCCESSFUL depends on facts of case
- court will consider all **circumstances of the case +
overriding objective**
- If party against whom specific disclosure is sought failed adequately to comply with obligations of order for disclosure = court will make necessary order to ensure they comply
- available if disclosure is adequate / something more is needed
Procedure
The application must:
- specify order sought, including listing documents sought in schedule to the order (more specific list = more likely of success) AND
- be supported by evidence
Specific inspection
Order that party must permit inspection of document which has been disclosed but disclosing party alleges it would be disproportionate to allow inspection = RARE
Timing = court can make order at any time after proceedings have been issued
PRE-ACTION DISCLOSURE
Used to obtain information from the opponent / intended opponent, before proceedings have started
The court may make an order for pre-action disclosure where below is met but court still has discretion:
- respondent / applicant is likely to be party to subsequent proceedings AND
- proceedings started = respondent's duty of standard disclosure would extend to documents / classes of documents which applicant seeks AND
- is desirable to dispose fairly of anticipated proceedings OR assist dispute to be resolved without proceedings OR save costs
Procedure
- Application must specify order sought, including listing documents sought AND
- be supported by evidence
- may also require respondent to specify documents no longer under its control/ which it has a right to withhold from inspection
Costs
Party against whom order for pre-action disclosure is sought will be awarded costs of application + complying with it
- Applicant pays the respondent's cost BUT not absolute rule
NON-PARTY DISCLOSURE
Used to obtain information from a non-party, after proceedings have been started
Court has power to order non-party to proceedings to give disclosure of documents where:
- documents are likely to support applicant's case / adversely affect case of other parties AND
- disclosure is necessary to dispose fairly of claim / save costs
IF MET = court may order non-party disclosure BUT not must as has discretionONLY used once proceedings have started.Procedure
- Application must specify order sought, including listing documents sought AND
- be supported by evidence
- require respondent to specify documents no longer under its control/ which it has a right to withhold from inspection
- Application notice must be served on respondent ie non-party
Costs
Court will order applicant to pay costs of respondent in dealing with application + complying with any order as a consequence
NORWICH PHARMACAL ORDERS
Used to obtain information from a non-party, before proceedings have started
Court proceedings cannot be commenced because identity of defendant is unknown = orders respondent, not defendant, to disclose info allowing claimant to sue right defendantCourt will grant an application for a Norwich Pharmacal Order where:
- wrong must have been carried out by ultimate wrongdoer AND
- there must be need for order to enable action to be brought against ultimate wrongdoer AND
- person against whom order is sought must be more than mere witness / bystander (have greater involvement, NOT necessarily fault) AND be able to provide info necessary to enable ultimate wrongdoer to be sued
Norwich Pharmacal order must be necessary + proportionate in all circumstances of caseProcedure
- IF application is sought before issue of proceedings against unknown defendant = usual for applicant to issue claim form against respondent 3P who has relevant information using alternative issue procedure in CPR 8.2.
- IF application is sought after issue of proceedings against unknown defendant = procedure is interim application within those proceedings
Costs
Successful applicant will pay costs incurred by respondent, including costs of giving disclosure
WITNESS EVIDENCE
Any fact which needs to be proved by evidence of witnesses at trial will be by oral evidence ANDWitness statement = written statement signed by person which contains evidence that person would be allowed to give orally
- exchanged with other parties + regarded as witness’s evidence in chief at the trial + subject to cross-examination
Exchange of witness statements Court will give directions as to exchange + parties must complyIf party served witness statement to rely on = must call witness to give oral evidence at trial OR put in statement as hearsay evidenceNon-compliance = If witness statement NOT served w/in time specified by court > witness cannot be called to give oral evidence unless court gives permission Extending the time for serving witness statementsParties can agree in writing extensions up to 28 days for serving (and filing) witness statements w/out court's approval if such extension does not put hearing at risk = if it risks it > court's permission
- IF NO extension but served late = application should be made for relief from sanctions
Presentation of evidenceCourt retains discretion on presentation of evidence at trial
- witness giving oral evidence at trial may, with permission of court, amplify witness statement
- court may limit cross-examination
BUT witness statement ONLY used for proceedings in which it is served unless witness / court has given permission for other use or heard at public hearing
Content of witness statementsCover every fact that needs to be proved by witness’ evidenceOpinions of witnesses are NOT admissible > confined to facts
EXCEPT FOR = Perceived facts AND Expert opinionMust be verified by a statement of truth
- IF FALSE = proceedings for contempt of court
Witness statements for interim applicationsInterim applications must be supported by written evidence (witness statement) AND a respondent will rely on written evidence to oppose application
- Usually not cross-examined
Form of witness statements
Given by individual (not company) + signed by them
1. Heading + statement that party is relying on witness / number of statements / exhibits / signing date
2. Opening paragraphs = witness name / home address / Occupation / witness is a party / employee of a party / how statement was prepared
3. Information and belief paragraph
4. Statement continues in witness's own words and language
5. Witness can refer to documents
6. Statement of truth + signature
Form of witness statements for an interim hearing
Same as above plus
1. After information and belief paragraph = confirms reason for statement
2. Before statement of truth = confirms what witness would like court to do for interim application
Additional rules for witness statements in Business and Property Courts
- Statement must identify documents witness has referred for purpose of providing evidence set out in their witness statement.
- Witness must include a signed confirmation that witness understands purpose of witness statement is not to argue case / take court through documents
- Statement must include confirmation from appropriate legal representative that rules have been explained to witness + representative believes witness statement complies with them
AffidavitsEvidence of fact must be given by affidavit (instead of witness statement) IF required by court / ruleAffidavit = written statement of evidence that is sworn by deponent before a person authorised to administer affidavits Content is the same as witness statement BUT form is different1. Heading states affadavit2. Introduction with ‘state on oath’ specific to affidavits3. Exhibit wording specific to affidavits4. Ends with jurat
- Statement at end of document which authenticates affidavit:
- signed by all deponents
- completed + signed by person before whom affidavit was sworn + contains their full address
EVIDENCE OF FACT
Evidence used to prove facts
- Documents
- Disclosure enables certain documents to be available for inspection
2. Witness evidence (testimony)
There are two types of witnesses:
- Witnesses of fact: direct evidence by witness of what they perceived with own senses
- Expert witnesses: evidence of matters of opinion within their expertise.3. Real evidence
- Real items adduced as evidence
Power of court to control evidence The court has the power to control the evidence by giving directions as to:
- issues on which it requires evidence
- nature of the evidence it wants
- way evidence is to be placed before court
- Exclude evidence
- Limit cross-examination
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