Civil Litigation SGS 13 - WITNESS STATEMENTS AND HEARSAY EVIDENCE

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billsykes
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209593
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Civil Litigation SGS 13 - WITNESS STATEMENTS AND HEARSAY EVIDENCE
Updated:
2013-03-26 10:32:28
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Civil Litigation
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Civil Litigation
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  1. Which ONE of the following statements is WRONG in respect of witness statements?

    [A] Tammy’s witness statement must contain a statement of truth.

    [B] If Tammy is called to give oral evidence her witness statement will stand as her evidence in chief at trial unless the court orders otherwise.

    [C] Tammy can amplify her witness statement at trial without the permission of the court if new matters have arisen since her statement was served.

    [D] If Tammy is unable to give a witness statement, a witness summary may be served instead if the court gives permission.
    [C] Tammy can amplify her witness statement at trial without the permission of the court if new matters have arisen since her statement was served.

    [[C] is WRONG and is therefore the CORRECT answer. See CPR Rule 32.5(3) – she needs the permission of the court to amplify a witness statement. Note that all other answers (A, B and D) are correct statements]
  2. Which ONE of the following statements is CORRECT in respect of witness statements?

    [A] Tammy’s witness statement must be served otherwise it will be impossible for her to give evidence at trial.

    [B] Tammy’s witness statement does not need to be in any particular form.

    [C] If her evidence was required for a hearing other than trial it would generally be in the form of an affidavit.

    [D] If Tammy’s witness statement is served but her evidence is not put in at trial the other side may put her statement in evidence as hearsay.
    [D] If Tammy’s witness statement is served but her evidence is not put in at trial the other side may put her statement in evidence as hearsay.

    [[D] is CORRECT. See CPR Rule 32.5(5)].

    [A] Tammy’s witness statement must be served otherwise it will be impossible for her to give evidence at trial. [It is not correct to state it is ‘impossible’ for her to give evidence at trial. Exceptionally, the Court may give permission to allow evidence to be given at trial even though a witness statement was not served. Please see CPR Rule 32.10 which sets out the consequences for a party in failing to serve a witness statement within the time specified by the court]

    [B] Tammy’s witness statement does not need to be in any particular form. [A witness statement must comply with the rules as to form and content – see CPR Rule 32.8 and PD32 paragraphs 17, 18, 19 and 20]

    [C] If her evidence was required for a hearing other than trial it would generally be in the form of an affidavit. [Evidence in proceedings other than at trial would ‘generally’ be in the form of a witness statement. See CPR 32.6(1). Examples of when affidavit evidence is needed include applications for freezing injunctions and search orders. See CPR 32.15 and Practice Direction 25 paragraph 1]
  3. Tammy is sent to France by her employers and will be in France during the trial. The claimant’s solicitor intends to serve her witness statement and wishes to produce her witness statement at trial without calling her. Assuming the claimant’s solicitors do serve her witness statement, which ONE of the following is CORRECT?

    [A] Tammy’s witness statement is not admissible on its own. She must attend the trial.

    [B] Tammy’s witness statement will not be admissible without the permission of the court unless a notice of intention to rely on hearsay evidence is served.

    [C] The notice of intention to rely on hearsay notice must be served 14 days before the trial.

    [D] The witness statement is admissible without calling Tammy, but the other side can apply for permission to call her for cross-examination.
    [D] The witness statement is admissible without calling Tammy, but the other side can apply for permission to call her for cross-examination.

    [[D] is CORRECT. See CPR Rule 33.4 and Section 3 CEA 1995]

    [C] The notice of intention to rely on hearsay notice must be served 14 days before the trial. [The party serving the notice of intention to rely on hearsay evidence must serve the notice no later than the latest date for serving witness statements. See CPR Rule 33.2(4)]
  4. Cedric also saw the aforementioned road traffic accident. He has told the claimant’s solicitors that in his opinion the driver of the car, which hit the claimant, was going very fast and looked very drunk. Which ONE of the following is CORRECT?

    [A] As an eyewitness, Cedric’s opinion is admissible.

    [B] Cedric can only give his opinion if it is a way of conveying relevant facts personally perceived by him.

    [C] Cedric cannot give his opinion unless he is an expert.

    [D] Cedric’s statements are admissible because they are statements of fact, not opinion.
    [B] Cedric can only give his opinion if it is a way of conveying relevant facts personally perceived by him.

    [[B] is CORRECT. See s.3 (2) Civil Evidence Act 1972 at 9B – 1060 Volume 2 White Book 2012. All other statements (A, C and D) are incorrect]
  5. What is the role of a witness statement at civil trial?
    To stand as evidence in chief.

    This is largely for efficiency – you serve them in advance and everyone knows whats goings on. Does not waste time and court resources (overriding objective).
  6. What is the best type of evidence at trial?
    Oral evidence
  7. When does a witness statement need to be served by?
    If a party intends to rely on a witness statement they must send a copy to the other side and to the court prior to the hearing. If the court has given any special directions requiring the parties to produce witness statements, the statements should be served in accordance with those directions.
  8. If a party hasn't served a witness statement, can the witness still give oral evidence at trail?
    Generally no.

    However, the court may give permission.
  9. What is hearsay?
    ‘hearsay’ means a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated.

    Non-issue in civil. Hearsay is admissible.

    • Oral or written statement
    • Made out of court
    • Adduced to prove the truth of the matter stated 

    “Posh spice told me that aliens landed in LeicesterSquare”
  10. I hearsay evidence admissible in civil proceedings?
    Yes, but it carries less weight than first had oral evidence.
  11. I want to rely on hearsay evidence. What should I do?
    You need to serve the other side with a hearsay notice.
  12. When must notice of hearsay be served by?
    By the latest date witness statements can be served.
  13. The other side have relied on hearsay evidence. I want to XX the witness. Is there anything I can do?
    Yes, you can apply to the court to have the witness present. The judge would compel the witness to attend.
  14. I want to rely on hearsay evidence but I haven't served notice to the other side. Can I still use it?
    The hearsay evidence is still admissible. However, if you fail to give notice it seriously affects the weight of the evidence.
  15. What will the court look at when considering the weight of hearsay evidence?
    Section 4 of the Civil Evidence Act 1995:

    a) would it have been reasonable to  produced the maker;

    (b)whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

    (c)whether the evidence involves multiple hearsay;

    (d)whether any person involved had any motive to conceal or misrepresent matters;

    (e)whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

    (f)whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
  16. What goes information do you need to put into a hearsay notice?
    1. Identify the hearsay

    2. State that you are intending to rely on hearsay

    3. State why the witness cant attend.

    When does this need to be served by again?
  17. I have to serve a witness statement but cant. Is there any thing else I can do rely on the evidence?
    You can apply (without notice) for permission to serve a witness SUMMARY.
  18. What is a witness summary?
    Essentially, a summary of the evidence that would be in the witness statement.
  19. Does a witness summary need a statement of truth?
    No, unlike a witness statement - which of course need a statement of truth.
  20. Does a witness summary have the same evidential weight as a witness statement?
    No.

    A witness summary has less weight as it only identifies the issues which are going to be dealt with.

    A witness statement is a full proof of evidence.
  21. What is a deposition?
    Say a witness is in hospital and can't make it into court...

    An examiner goes to the witness and records a witness statement from the witness.
  22. When must a deposition take place and what do I need to do in order to rely on depostion evidence at trial?
    Deposition must take place before the hearing.

    You need to serve notice on all other parties at least 21 days before the date of the hearing
  23. What weight does deposition evidence have?
    Same as a witness statement.
  24. What is opinion evidence and when it is admissible in court?
    Where a witness express their opinion on a matter in court.

    The general rule is that opinion evidence is INADMISSIBLE.

    2 exceptions:

    Experts opinion (within the experts area of knowledge)

    Where it is the only way a witness can express the facts perceived ("the car was driven far too fast")
  25. What is a witness summons?
    Document issued by the court requiring a witness to either:

    attend court; or

    produce a document
  26. When do you need permission for a witness summons?
    Generally you dont need permission providing its requested more than 7 days before trial.
  27. Who usually serves a witness summons?
    The court

    But personal service is possible.
  28. If I dont comply with a witness summons what can happen to me?
    Held in contempt of court:

    • Fine (best)
    • Prison (worst)

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