Evidence PDF

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Summary

Evidence in civil litigation procedures...

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Evidence:  Disclosure Disclosure= telling other side of existence of documents- CPR 31.2 Inspection=whether the other side is actually allowed to see documents- CPR 31.3 Standard disclosure:  Is it a document? – CPR 31.4- ‘anything in which information of any description is recorded’  Is it, or was it, in your clients control?- CPR 31.8- ‘it is or was in physical possession, he has or had right to possess it or he has or had a right to inspect or take copies of it’  Does it satisfy standard disclosure?- CPR 31.6 (provide full reasoning)- ‘document which he relies and which adversely affect own case, adversely affect another party’s case or support another party’s case’ Inspection:  Can the document be withheld from inspection? (Is it privileged?) Why? -Legal advice privilege: ‘confidential information for the purpose of giving or receiving legal advice’- Parry v Newsgroup (solicitors attendance note and correspondence between parties not privileged- no confidentiality where both sides have seen communication- open communication) -Litigation Privilege: ‘Confidential communication between the lawyer and his client, or between one of them and a third party (Good Luck-if advice is repeated internally this is litigation privilege), for the dominant purpose (Waugh v BRB- the document must not be for a dual purpose/Re: Highgrade traders-when dominant purpose may not be determined, the court may consider intention of the commissioner and not author to determine purpose) of obtaining legal advice, evidence or information for use in the conduct of litigation that is reasonably in prospect’ (USA v Phillip Morris) -Without prejudice: a genuine attempt to settle the dispute (substance rather than form-Rush and Tomkins v Greater London Council) -Waiver- client can waiver privilege if loss of confidentiality (exchange or serve document) or mentioning a document in a court document, accidentally or by agreement however cannot waive in part (Great Atlantic Case) -Redaction- if a document is not privileged, but contains severable parts that are privileged or irrelevant those can be redacted, commercially sensitive information can be inspected unless privileged or irrelevant and outside of SD (part of list= redacted version on part 1, unredacted version= part 2) -Once privileged, always privileged- Aegis Blaze 

Which part of the List of documents? -Part 1=Disclose and inspect -Part 2=Disclose but privileged

Professional Conduct: -Solicitor must ensure client understands its duty- 31A PD 4.4- duty to disclose all disclosable documents- CPR 31.10 (6) -Client signing a false disclosure statement is contempt of court- CPR 31.23 -If client does not want document on list then must not do O (5.1) nor O (5.2) and refuse to act- IB (5.5)

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Evidence

Prove at trial: Duty (admitted in defence), breach (disclosed documents), causation (disclosed documents/witness statements) and loss (disclosed documents, witness statements and expert evidence) Evidence: documentary evidence and testimony (witness of fact/expert witnesses) o o

General rule- all evidence relevant to facts is admissible Exceptions: -Privileged evidence (subject to waiver)- evidence that is protected from inspection in civil proceedings by rules of privilege -Opinion evidence- evidence of what a witness thinks, believes or infers in relation to facts, as distinguished from personal knowledge of the facts themselves, general rules is it is admissible but exceptions under s3 (2) CEA 1972 for perceived facts and s3 (1) CEA 1972 for expert opinion -Hearsay evidence (indirect evidence)- oral or written statement, made out of court, adduced in court to prove the truth of matter stated- general rule is it is admissible in civil proceedings- s1 CEA 1995

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Rules governing hearsay evidence: -s1 CEA 1995- admissible -s2 CEA 1995- notice (deemed/actual) -s3 CEA 1995-apply to call for cross-examination -s4 CEA 1995- weight -s5 CEA 1995- attach credibility

Expert evidence: o Court has duty to restrict expert evidence to that reasonably required- CPR 35.1 o Need permission from court to use expert evidence (for written/oral report)CPR 35.4 (1) but not if want to use expert informally without intending to use their evidence- known as ‘expert advisor’ (see para 6 Guidance) o Court will want to know field required and issue to be addressed and if possible, their names- CPR 35.4 (2) and also require a costs estimates for party’s costs budget o A SJE can be appointed by court- CPR 35.7 and 35.8- will be instructed to property a report by the parties but rarely used in multi-track cases unless expert issue is not controversial -If need to find suitable expert- the more crucial the expert evidence, the more important the choice of expert: ask around (within firm, directories, counsel), check your expert witness past experiences, ensure that expert witness is not conflicted and has availability, try to instruct expert early in process and make sure that expert is likely to be an effective expert witness -Letter of instruction and expert report- subject to rule in CPR 35.10 (4)- is experts report are exchanged and one side looks at the report of the other sides expert and think that the conclusions are inaccurate then it may think the reason for this is that the expert has been provided with instructions which were inaccurate Experts- what happens after exchange: -Questions to experts- CPR 35.6- written qs put to expert once only within 28 days of service of the experts report for the purpose of clarification only subject to courts permission- if expert

does not answer qs then court may rule that party seeking to rely on report cannot recover fees- CPR 35.6 (4) -Discussions between experts- CPR 35.12- court can direct discussions take place between experts to identify, narrow and is possible agree issues and parties must discuss whether agenda is necessary and is so attempt to agree one that help experts focus on issue- 35 PD 9.3/para 75 and 76 Guidance -Joint statement- 35 PD 9.6 -Experts right to ask court for directions- CPR 35.14  Instructing an SJE -Claimant: o Put qs to expert- once only and within 28 days of service of report- CPR 35.6 o If funds allow, instruct expert advisor (advise on technical matters without giving evidence) o If expert advisor opinion differs- apply to court to call expert advisor as expert witness- Daniels v Walker o If SJE is to give oral evidence- consider cross-examining SJE o Consider settlement- in a weaker position -Defendant: o Service Notice to admit facts- CPR 32.18- invite other party to admit certain facts, if they fail to do so then may be penalised in costs- CPR 44.2 (5) (b)-(c) o Consider settlement- in stronger position 

Drafting Witness statements: -General contents of witness statement- CPR 32.8/32 PD 19.1 -Heading/top right hand corner endorsement- 32 PD 17.1 and 17.2 -Witness details- 32 PD 18.1 -Information and belief paragraph- 32 PD 18.2 -Exhibits- 32 PD 18.3-18.6 -Structure of witness statement- 32 PD 19.2 -Statement of truth- 32 PD 20...