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Statements Hearsay And Evidence Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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A more recent version of these Statements Hearsay And Evidence notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Statements, Hearsay & Opinion Power of Court on Evidence r32.1 - Court has power to control evidence by giving directions on:

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Issues;

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Nature of evidence required;

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Way in which evidence is admitted;

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Exclude otherwise admissible evidence.

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O'Brien v CC of SW Police - The test for admissibility of bad character is: i. (I) Relevance (probative of an issue in the case - THE ADDITIONAL RULES IN CRIMINAL PROCEDURE DO NOT APPLY IN CIVIL CASES); ADMISSIBLE ii. (ii) Are there good grounds why a court should decline to admit it in the exercise of its case management powers?

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Judge must exercise this power compatibly with OO.

Limit XX.

r32.1 - The court may strike out evidence which is "Scandalous, irrelevant or oppressive".

Types of Written Evidence There are six types of written evidence:

Witness Statement

Written Statement signed by person containing their EiC. Stands as EiC at hearings other than trial - r32.2

Witness Summaries

Permission must be obtained from court to use in a without notice application (r32.9). Can't be used for interim application. Only proper if can't get W to sign WS. Is a summary of evidence (if W known) or of questions (if W not known). It must include name and address of intended W, unless court orders otherwise.

Affidavit

Format same as WS - 3.5cm margin, AE, same corner markings, hearings etc. It should start with the "Commencement" (PD32(4.1) after heading and before body. This is "I [full name] of [address - which can be business if professional capacity] state on oath:" It must be sworn by the deponent before a solicitor, barrister, judge, certain court officials, Consuls or someone authorised to take oaths and independent of parties (PD32(9)). Fees are payable for affidavits. So more formal than WS. May be used whenever, but must be used for freezing injunctions, search orders, and contempt of court.

* If deponent is unable to read or sign, official must certify that he has read the affidavit to the deponent and the deponent appeared to understand it (PD32(7.1)(1)-(2)). Must also certify deponent made their mark per PD32(7.1)(3). Two versions of the form of certificate is appeared. If no certificate, it can't be used unless court is satisfied that it was read to the deponent and the deponent appeared to understand it (PD32(7.2)).

* A false affidavit or affirmation is contempt of Court. Maker may be prosecuted for perjury if it is knowingly false as 'jurat' or affirmation' is the equivalent of testimony on oath. End with "Jurat"

Affirmations

Same as Affidavit, but affirm rateer than swearing truth!) "I [full name] of [address] do solemnly and sincerely affirm" (in the commencement). The word 'sworn' in the jurat is replaced by the word 'affirmed'

Statements of Case

Verified by SoT.

Application Notice

Verified by SoT.

Statements of Truth

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r22.1 - The following documents must be verified by statement of truth:

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SoC; (Including Replies to DS) - As this can be used as EiC in lieu of calling W.

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Reponses Complying with r18 request for Further Information;

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WS;

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AoS in claim begun under Pt 8 procedure (different Role in Pt 8 than otherwise);

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Certificate stating reasons for bringing possession/LL/T claim in HC;

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Certificate of Service; (Solicitor in personal capacity, rather than on behalf of client) and

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Any other doc required by rule/PD iii.Expert's Report - PD22, PD35(2.3) iv. Schedule of Past & Future Expenses & Losses v. Counter Schedule ^^
vi.Amendments to the Above.

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COSTS BUDGET (signed by senior legal rep), but not other costs docs other than "Schedule of Costs" for a costs capping Order.

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RTA/EL/PL Protocol Claims

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Amendments to SoC - unless court orders otherwise.

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AN (if relied on as evidence)

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If proceedings brought by litigation friend, it is the LF's statement of truth - r22.1(5).

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r22.1(6) - It must be signed by:

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Party or litigation friend or

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Legal representative of party/LF

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In the case of WS, the maker of the Statement.

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It may be made by two parties jointly, or a person not a party (eg: TP's WS).

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A statement of truth not contained in the Doc it verifies must clearly identify the doc (r22.1(7)).

Failure to Verify SoC/WS

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r22.2 - The Soc shall remain effective unless struck out BUT it cannot be relied upon as evidence of any of the matters stated in it.

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The court may strike out an unverified SoC per r22.2(2). Any party can apply for such an order.

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Thus, an unverified statement is not a nullity!!!

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