This is an extract of our Evidence document, which we sell as part of our Civil Litigation Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.
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Evidence Admissibility The general rule is that everything is admissible if it is relevant to the facts. There are special rules, however, concerning some sections of evidence. Opinion Evidence The general rule is that the witness must only give evidence of facts NOT opinion. There are two situations were opinion evidence is admissible:
1. PERCEIVED FACTS - s3(2) Civil Evidence Act 1972 a.
2. An example of a perceived fact is that the "car was driving fast". This is obviously a subjective point, but it was perceived, and so is admissible. A statement "the car was driving far too fast" is not.
EXPERT OPINION - s3(1) Civil Evidence Act 1972 a.
Remember, the expert isn't deciding for the court, he is providing opinion evidence in his area of expertise.
Admiral Management - a properly qualified expert is not necessarily disqualified if they are employed by the client, but generally you cannot bring your own employee - only in extreme cases.
Hearsay Evidence - CPR 33 This is indirect evidence, whether written or oral. Section 1 Civil Evidence Act 1995 states that all hearsay evidence is now admissible in civil proceedings. Definition: hearsay evidence is evidence made out of court, which is adduced in court to prove the truth of the matter stated. There are three components:
1. Written or oral statement
2. Made on a previous occasion (out of court)
3. Adduced in court to show that the statement is true
Hearsay may be first hand or multiple:
If you are going to rely on hearsay, you must give notice of intention to rely on hearsay evidence - s.2 CEA. This must be couple with the reason the witness won't be at trial (CPR 33.2(1)).
The effect of failure to serve notice is NOT that evidence is rendered inadmissible, but rather that it can have an effect on the weighting of the evidence, and any costs orders made in relation to it.
Witness Evidence - CPR 32 a) Witness Statements A witness statement is a written statement which is signed by a person, and containing the evidence that the PERSON IS ALLOWED TO GIVE AT TRIAL (CPR 32.4). A witness will generally not be allowed to give oral evidence at trial unless a witness statement has been exchanged with the other side beforehand (the idea being that it gives the other side notice of what evidence you will be using). WITNESS SUMMARIES - if the witness is hostile and won't talk to you, but you intend to call them at trial, CPR 32.9 allows you to apply to court w/o notice for permission to serve a witness summary containing the evidence required]. b) Preparation of Witness Statements See p.18 precedent materials
CONTENT - work backwards - 1. What is your argument? 2. What is the legal basis? 3. What is the fact? 4. What must the witness prove to validate the fact?
STYLE - first-person and using the words the witness would use.
FORM - this is set out in CPR 32.8 (learn this properly - emphasis given in lecture)
When a witness statement is drafted, it falls under litigation privilege as its only purpose is for litigation. This privilege is waived when it is given to the other side. c) Exchange of Witness Statements The parties must comply with court directions given for exchange of witness statements.
CPR 32.10 - if a witness statement is not served within the specified time, the witness may not be called to give evidence unless the court gives permission.
Provided the direction for exchange does not contain a penalty (or key date - CPR 29.5), you can try to agree an extension with the other side should you need one - CPR 2.11 and PD 29.6.5.
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