DR WS10 notes PDF

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Dispute resolution workshop10
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DR WS10 - Disclosure, Witness Statements and Expert Evidence Preparation 1. Read the following.  Chapter 11, but not 11.16 or 11.17 (you have already read this chapter for Workshop 8 so you just need to refresh your memory)  Chapter 12, but not 12.9.4 to 12.12 inclusive nor 12.15  Appendix A (21)  Appendices B(9), B(10), B(11), B(12)  Appendix D (11).  From the Ministry of Justice website:  CPR Part 31  CPR Part 32, but not r.32.17 to r.32.20 inclusive  CPR Part 35, but not r.35.15  Practice Direction 31A  Practice Direction 32, focussing on paragraphs 17 to 20 inclusive  Practice Direction 35. 2. View the recorded lecture: Witness Evidence and Admissibility of Evidence. 3. Complete the Workshop Preparatory Task. 4. Complete the Test and Feedback for Workshop 10 (Preparation). Exam:    

Critiquing a draft witness statement: Does format comply with CPR? Is there any inadmissible evidence? – hearsay, opinion? Professional conduct issues

PREP TASK 1 Question 1 – address gaps in time Extent of search o Too restricted in time? Before 2012 o Too restricted in location? o For electronic disclosure – does the extent of the search and the keywords used match what was discussed/agreed pre the CMC? What email accounts does Mr Azedvado use? What devices does he use? Part 1 o Any obvious documents missing? E.g. documents you know exist because you sent them to him or are referred to elsewhere or which nature of the business/dispute you would expect to exist? o Have they been described appropriately? Part 2 o Do the claims to privilege appear legitimate? Part 3 o Does it identify when the documents were last in the party’s control/what has happened to them? Question 2  As a result of the points you have identified what first step will you take? o Agree with other solicitors without getting the court involved to further the overriding objective o state why you think certain changes need to be made and explain why you believe the documents are disclosable and asking the other party to comply properly with the order for disclosure 

If these steps don’t work what you will do next?

o o o o o

If they don’t agree then apply to court on Form N244 for specific disclosure Attach witness statement in support – (r31.12) what documents applicant believes exist and why they should be disclosed Give form to supervising solicitor – whoever is conducting disclosure Draft an order for the court to approve for specific disclosure r31.12 Challenge privilege r31.19(5) as the financial advice isn’t privileged

WORKSHOP TASK 2 2 points in favour of opening email under Conduct  Principle 4 - acting in the best interests of your client to open the letter because you will find out the merits of the other side’s claim  Rule 13 - Claimant’s may be waiving their privilege to read the letter  O(4.2) – duty to disclose to client all information material to their case 2/3 points against reading it  Principle 1 – uphold rule of law and proper administration of justice  Principle 2 – act with integrity  Principle 6 – maintain trust public places in you  O(11.1) you do not take unfair advantage of third parties in either your professional or personal capacity  IB(4.4)(d) exception to O(4.2) disclosure where documents are legally privileged  CPR 31.20 – you can only use legally privileged documents by permission of the court  Delete it, or destroy it  Don’t reply to the email as it is also privileged and you will be creating additional copies  Send a new email to say that there has been a mistake, and if you have or haven’t read it and why Conclude – what you are going to do: return it WORKSHOP TASK 2  Statements of case – only facts and law  witness statements – evidence of fact not opinion  must be in the witnesses own words, in first person, numbered paragraphs, chronological WORKSHOP TASK 3 – Admissibility of evidence Relevance  any evidence to be admissible, must be relevant… relevance must and can only be judged by reference to the issue which the court is called upon to decide – O’Brien v CC South Wales Police 2005  if it isn’t relevant, it’s not admissible Opinion  general rule – opinion evidence is not admissible  exception – statement of opinion, if made to convey relevant facts personally perceived by witness, is admissible as evidence s3(2) Civil Evidence Act 1972  perfection of “it appeared to be fast” is admissible Hearsay • Oral or written statement made outside the courtroom, repeated to the court in order to prove the truth of the matter stated out of court 

1. is it relevant? 2. Is it opinion? Not admissible unless it’s made to convey relevant facts or it must be your expert’s opinion. Hearsay?

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Hearsay is admissible in civil proceedings, but not in criminal proceedings, you have to state where you obtained that info and knowledge

Task: • Inadmissible - but make it admissible > “I have a number of awards for my humanitarian work in Columbia, I am well known and you can see this in Exhibit…” and specify awards. It is relevant, but could be changed. Provide facts/evidence - i.e. articles, awards etc. Get more information from him. To give facts, details, illustrations • Opinion – admissible opinion exception > I did not authorise the transaction dated …. Those dated… transactions do not have any correspondence to suggest that I did make the approval. It is too general. Change it, and give more detail. • Hearsay > relevant and admissible - get William Nicholson to give a witness statement • Opinion > relevant and admissible - make amendments. The first sentence is his opinion. Could be improved. Just give an example, but strictly speaking, the first sentence sounds like his opinion • This is hearsay > inadmissible. Valerie is an expert - so this is an attempt to get expert evidence through the back door and does not have permission to get further evidence • Incompetent > not relevant, and opinion and inadmissible. • Factual evidence > relevant and admissible and could be reworded....