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BPTC Law Notes BPTC Civil Ligitation Notes

Civil Evidence Notes

Updated Civil Evidence Notes

BPTC Civil Ligitation Notes

BPTC Civil Ligitation

Approximately 1172 pages

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Civil Evidence

Burden and standard of proof

What is the standard of proof in civil proceedings?

 On the balance of probabilities.
Who bears the burden of proof? The claimant.

Competence and compellability of witnesses

What is the general rule?

  1. Any person is competent in any proceedings; and

  2. All competent witnesses are compellable.
What are the exceptions to this rule?

  • Children: Any person under 18 who does not understand the nature of the oath may only give evidence if:

  1. He understands the nature of the duty to speak the truth; and

  2. He has sufficient understanding to justify his evidence being heard.

  • Persons of unsound mind: Any person of unsound mind is not competent if:

  • Prevented from understanding the nature of the oath, and

  • Prevent from giving rational testimony

  • Sovereigns, heads of State and diplomats: All competent but not compellable.

Hearsay in civil proceedings

Is hearsay evidence admissible?

 Yes, evidence should not be excluded by reason that it is hearsay.
What are the conditions for hearsay being admissible? That the statement maker, and in cases of multiple hearsay all the makers, would be competent to give evidence in court.
On whom does the burden of proof rest for admitting this evidence? The burden is on the party wishing to exclude the evidence to show that the maker was not competent.
Are previous statements admissible in proceedings? Yes, but only with permission of the court. Permission will generally not be granted if the witness will be called, but may be given to rebut an allegation of fabrication or to memory refreshing document.
When is permission granted?

  1. Where the witness is incapable of giving evidence; or

  2. Any evidence that would be given would be unreliable, inconsistent, or not wholly intelligible due to partial memory loss, lapse of time, age, etc.
What is the procedure for adducing hearsay evidence? A notice must be given to all the parties, and following a request, provide particulars of the evidence.
When is notice given?

Hearsay given orally: Give notice by serving W/S

Hearsay evidence in W/S, but W not available to attend court: Give notice by serving W/S + Inform other party that W will not attend + Give reason for absence.

All other cases: Serve a notice that identifies the hearsay + state that party intends to rely on hearsay.
What should the notice contain?

It should:

  1. Identify the hearsay evidence;

  2. State that the party serving the notice proposes to rely on hearsay evidence at trial; and

  3. Give a reason why the witness is not being called.
In what cases do these rules apply? In fast track and multi-track cases, but NOT in small-track cases.
What are the consequences of failing to give notice?

  1. An adjournment may be ordered to allow the party to serve notice.

  2. A costs sanction may be imposed.

  3. The court may reduce the weight of the evidence.
What can a party do if they wish to cross examine a witness not being called? A party can apply within 14 days to call that witness to cross-examine them.
What weight will be given to hearsay evidence?

A party served with a hearsay notice can:

  1. Request particulars of evidence;

  2. Make submissions aimed at reducing the weight to be attached to the evidence, which may include

  • Whether original statement was made at the same time as another matter;

  • Motive of statement maker

  • Whether W should have been present given te size of the case and difficulty of being present.

Additionally, may apply to XX maker of W/S with permission (The application can only be made where W has no good reason for absence)

Call evidence to attack the maker’s credibility (no permission, but notice to attack is needed.
Civil Evidence Act 1995, s5(2): Any evidence of credibility that would have been permitted had the witness been in court is admissible.
What must be done if a party wishes to attack the credibility of the statement-maker? They must serve notice within 14 days of receiving notice that the party intends to rely on this evidence.
How is hearsay evidence adduced? By producing the record, original document or a certified copy of it. Documents forming part of business records may be adduced without further proof.

Preparation and exchange of witness statements

What is a witness statement (‘W/S’)?

 A formal document containing a written statement of the facts as that person believes. A W/S must be signed and must contain a statement of truth.
When and how are W/Ss used? It is a means of adducing evidence at interim applications or trials. A W/S stands as a witness’s evidence-in-chief to save time and costs. However, a witness may amplify his evidence and given additional oral evidence if the court allows.
Are W/S disclosed for interim applications?

Yes. If the hearing is with notice, they are attached to the application notice.

If the application is without notice, they are attached and sent after decision is made.
Is XX allowed in hearings for interim applications? Usually no live evidence is called in an interim application. However, the court may give an order for a witness to be called and XX where the evidence is seriously challenged.
For a trial, when are W/Ss exchanged?

W/S are only usually exchanged in fast and multi-track cases. At the allocation hearing/case management conference, a date will be set by which time that W/Ss must be served on the other parties.

The date will usually be a few weeks prior to the date for disclosure of documents.
Are W/S protected by legal profession privilege? Yes, until they are served, at which point the privilege is waived.
What are the consequences for failing to serve a W/S? The witness may only be called with permission of the court.
Can a W/S be used for another purpose by another party?

No, unless:

  1. The witness gives written consent; or

  2. The court gives permission; or

  3. The statement has been put in evidence at a hearing in public.
What are the consequences of a false W/S? Proceedings for...

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