Request for further information- lecture 8 PDF

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Lecture 8

Request for further information/ Witness statements and Experts Request for further information: • •

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Used when a statement of case (Particulars of Claim or Defence) is unclear CPR 18.1 - Court may order party to (a) clarify any disputed matter in the proceedings; or (b) give additional information in relation to any such matter, whether contained or referred to in statement of case or not CPR 31.14 & 15 – Court may order party to disclose documents referred to in a statement of case, witness statements, affidavits etc PD 18, para 1.1 – before applying to court, first serve on other party a written Request for clarification or information, stating reasonable date for response; apply only if no, or no adequate, response

Formalities • • • • • • • •

PD 18, para.1.6 (1) A Request (whether made by letter or in a separate document) must – (a) be headed with the name of the court and the title and number of the claim (b) in its heading state that it is a Request made under Part 18, identify the first party and the second party and state the date on which it is made (c) set out in a separate numbered paragraph each request for information or clarification (d) where a Request relates to a document, identify that document and (if relevant) the paragraph or words to which it relates (e) state the date by which the first party expects a response to the Request PD 18, para 3 – the Response should be verified by a statement of truth

Witness Statements • • • •

Next step typically undertaken after disclosure and inspection is exchange of witness statements Once ready, solicitors agree a date for exchange and the means (e.g. post/DX) They then post or DX the documents on the date agreed so no-one gains any advantage Known as ‘simultaneous mutual exchange’

Content: • • •

Initial ‘proof of evidence’ from client will have been a fairly comprehensive statement dealing with a host of issues (as you may not always be sure which ones will turn out to be significant) By this point in the proceedings, however, the disputed issues will have been identified A witness statement for exchange should only address the facts relevant to these disputed issues

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You should therefore exclude: • All evidence irrelevant to the disputed issues • Opinion evidence, except that which falls within ordinary experience (e.g. estimate of the speed of a car) • Evidence about any settlement negotiations or Part 36 offers • Evidence that is privileged (i.e. private) A statement of truth in a witness statement must be signed by the witness – PD 22, para. 3.2 Wording of statement of truth in witness statement – PD 22, para. 2.2 • I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Hearsay •

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What is it? – Either when A gives evidence as to what B saw; or C gives evidence of what A said B saw…etc; or – When B’s witness statement is tendered at trial as B is unable to attend Is hearsay admissible in civil cases, unlike criminal ones? – Yes, under Civil Evidence Act 1995 – But under s. 4(2), the weight to be attached to it will vary depending on whether: – reasonable and practicable for maker of statement to give oral evidence – statement was made contemporaneously – multiple hearsay is involved – anyone had a motive to conceal or misrepresent any matter – statement edited or made in collaboration with another person for some particular purpose – all circumstances suggest attempt to prevent proper evaluation of the statement

Formalities • •

See PD 32 paras. 17-20 NB: witness statements are privileged (i.e. private) until time for mutual exchange with other party’s - in the meantime, they go into Part 2 of the List of Documents

Experts Reasonably required • • •

No party can call an expert or put in evidence an expert’s report without court’s permission – CPR 35.4 Expert evidence shall be restricted to that which is “reasonably required to resolve the proceedings” – CPR 35.1 For example, in the Photolabs case study, expert evidence was “reasonably required” on the alleged flammability of the Airkan propellant

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NB: Expert reports are privileged (i.e. private) until exchanged with the other party’s - in the meantime, they go into Part 2 of the List of Documents

Experts – Single joint or separate? • •

Will the court direct the use of a single joint expert (jointly instructed, if possible) or separate experts for each party? No single factor decisive, but factors are: – Value of the claim i.e. the higher, the more likely court will direct separate experts – Complexity of the claim i.e. the more complex, the more likely court will direct separate experts – Importance of the issue requiring expertise to the likely outcome of the case i.e. the more important, the more likely court will direct separate experts – Range of opinions i.e. the greater the likely range, the more likely court will direct separate experts – Prior instruction of separate experts may make it cost-effective to carry on that way rather than direct single joint expert – If party dissatisfied with a joint expert’s report, they will be expected to ask questions of expert first before seeking leave to instruct a separate expert - Daniels v Walker [2001] – If separate experts directed, court will typically order discussions between experts to try to agree their evidence or, if not, to narrow down areas of disagreement – CPR 35.12

Another separate- expert? • •

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What if your separate expert’s report turns out to be unfavourable? Can you just go and get a favourable one from a different expert? No, the court will normally require you to waive privilege over your original report (i.e. require you to disclose it) as a condition of granting you permission to adduce evidence from a different expert - Edwards-Tubb v JD Wetherspoon PLC [2011] This is to stop "expert shopping“, the practice of ditching experts because they don’t support your case

Duties to the court • • • •

CPR 35.3 (1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. An expert's report must be verified by a statement of truth in the following form - PD 35 3.3 – “I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on

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the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”...