Civil (6)
Terms
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- What is the general rule in civil proceedings in relation to evidence?
- The general rule in Civil proceedings is that all evidence that is relevant to the facts is admissible.
- What is the purpose of a witness statement?
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Oral evidence is DIRECT evidence. The witness statement is prior notice of what witness will say (CPR 32.4(1))
- What should a witness statement contain?
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Evidence of facts which support:
Duty
Breach
Causation
Loss -
What is a consideration point (PCR-wise)
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The issues relating to D,B, C and L should be properly arguable IB (5.7)
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Must you immediately inform the court with the client’s consent if you become aware that you have inadvertently misled the court?
- Yes - IB(5.4)
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Should a solicitor influence a witness when taking a statement from that witness?
- No - IB(5.10)
- Can a solicitor tamper with evidence or persuade a witness to change his their evidence
- No - IB(5.11)
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What should a witness statement not include?
- Irrelevant/inadmissible/opinion information. Also, do not anticipate your opponent’s evidence
- When are witness statements exchanged and why?
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The exchange of witness statements is done simultaneously so that each party receives the other's evidence at the same time and neither is disadvantaged.
- Can you pay a witness?
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O(5.8) – You cannot make a payment to the witness dependent upon their evidence or outcome of the trial.
- Should you disclose a witness statement?
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Yes under 31.6, the party who drafted it will seek to rely on it to prove the issue/s in dispute. Therefore it must be disclosed.
- Can the other side inspect the witness statement?
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No. The witness statement has litigation privilege. This privilege will be waived once the WS is finalised and served.
- When reviewing a witness statement, what points should you look out for?
- Think about typographical and factual errors.
- When an individual is preparing a witness statement in their professional capacity, should he or she use his/her work address?
- Yes 32PD18.1(2)
- In terms of running through and explaining your client's case, what should you think about?
- Make sure paragraphs are chronologically in the correct order.
- Can a client include hearsay evidence in their witness statement. What other options exist that might be better?
- Yes. Under S.1 CEA, all hearsay is admissible but a better option would be to obtain a WS from the individual.
- To establish your case, what must your client's witness statement build on and how can this be achieved.
- The statement must build on D, B, C and L. Statements like 'X replied upon' should be included (provided that statement's true of course).
- Is opinion evidence admissible?
- No such evidence is inadmissible unless it is from an expert or used to convey matters perceived.
- What is hearsay evidence?
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- Evidence of an oral or written statement
- made out of court
- being adduced in court
- to prove the truth of the matter stated - What are the procedural consequences of relying on hearsay evidence?
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Give notice to the other side pursuant to S.2 CEA your client will be giving hearsay evidence.
Notice is deemed to have been given upon exchange of witness statements (s.2(1)(a) and CPR 33.2 (1)).
- What if a witness refuses to sign a WS even though you have interviewed him?
- Even if the witness has not signed the statement, you can still use the statement. You should apply to use a witness summary (CPR 32.9) and then issue a witness summons (CPR 34) which will ensure that the witness attends.
- In terms of meetings with experts? What are the advantages of a lawyer attending?
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- prevent the other expert ‘browbeating’ their client's expert
- assist on the law and facts
- encourage settlement after seeing the other side ‘in action’
- In terms of meetings with experts, what are the disadvantages of a solicitor attending?
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- Increased costs
- Presence of lawyers could inhibit a full and frank discussion between experts