Disclosure, witness statements and expert evidence (WS10) (REPEATED IN WS11)

Outcomes 1. Analyse the other side's list of documents and advise on whether the disclosure complies with the CPR and whether claims to legal professional privilege have been properly made. 2. Apply detailed and comprehensive knowledge to ensure that witness statements comply with CPR Part 32 and PD32. 3. Apply detailed and comprehensive knowledge to advise on instructing experts and the rules relating to expert evidence. 4. Exercise sound professional judgement in advising on the admissibility and relevance of evidence. 5. Identify and address the client's commercial objectives and concerns regarding disclosure of documents and exchanging evidence 6. Advise on the approach to be taken regarding any professional conduct issues. CPR 32, CPR 35: evidence (checklist) -Questions could involve consideration of a non-CPR-compliant witness statement or expert report -Do, if asked, give reasons for any changes you suggest. This will involve citing in detail relevant parts of the CPR and PDs -Be precise on the facts as to what the problem is and how you would rectify it -If you are told you do not have to redraft the document this means you do not have to start completely from scratch; you may nonetheless have to explain in detail what changes you would make Factual and expert evidence " Evidence falls into two broad types. 1. First, factual evidence from a witness 2. Secondly, expert evidence from a suitably qualified expert OUTCOME 2. Apply detailed and comprehensive knowledge to ensure that witness statements comply with CPR Part 32 and PD32. SEE BELOW Witness Evidence General rule " Under r 32.2(1), the general rule is that any fact that needs to be proved is to be proved at trial by oral evidence given in public, and at any other hearing by evidence in writing. Pre-trial exchange " when giving directions for trial, the court will usually order witness statements to be exchanged. " Rule 32.4(2) states that the court will order a party to serve on the other parties any witness statement of the oral evidence upon which the party serving the statement intends to rely in relation to any issue of fact to be decided at the trial. " where a witness statement is not served, the witness will be allowed to give evidence at trial only with the court's permission. " Once a witness statement is served, it ceases to be privileged Objections to contents " By r 32.4(1), a witness statement is a written statement signed by a person that contains the evidence which that person would be allowed to give orally. " So what should you do if, after exchanging witness statements, you object to the relevance or admissibility of material contained in your opponent's statements? =Best practice is to notify the other party of your objection immediately and seek to resolve the dispute. Failing that, raise the matter at any pre- trial review or at the beginning of the trial itself. Additional evidence SUBSEQUENT EVIDENCE =prepare and serve a supplemental witness statement dealing with these points as soon as possible. " The other party should be asked to agree to the evidence being adduced at trial. " Failing that, an application for permission to rely on the evidence should be made at any pre-trial review or at the beginning of the trial itself. Form of Witness Statements Structure and contents: " A witness statement is a written statement signed by the deponent with a statement of truth which contains the evidence which the deponent would be allowed to give orally. " Inadmissible material should therefore not be included. Irrelevant material should likewise not be included. " Rules relating to the form of witness statements are set out in paras 17-20 of PD 32. " By para 17.1, the witness statement should be headed with the title of the proceedings, and by para 17.2 the top right-hand corner should state: o (a) the party on whose behalf the statement is filed (eg Claimant); o (b) the initials and surname of the witness (eg MJ Brownlow); o (c) the number of the statement in relation to that witness (eg 1st); o (d) the identifying initials and number of each exhibit referred to (eg MJB1); and o (e) the date the statement was made (eg 16/05/14). " Other key formality requirements in PD 32 are: o (a) the witness statement should be divided into numbered paragraphs (para 19.1(5)); o (b) all numbers, including dates, should be expressed in figures and not words (para 19.1(6) and see also 7.1.4); o (c) the witness statement should normally follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject (para 19.2). " By PD 32, para 18.1, the statement should be in the witness's own words as far as practicable. It should be in the first person and state: o (a) the full name of the witness; o (b) where he lives or, if the statement is made as part of his employment or business, where he works, his position in the business and the name of the business; o (c) his occupation or description; and o (d) (if so) that he is a party or an employee of a party. SOURCES OF INFO + BELIEF(PD 32, para 18.2) " The statement must indicate which of the statements are based on the witness's own knowledge and which are matters of information or belief, and the source of his information and belief. EXHIBITS (PD 32, paras 18.3 and 18.6) " Any exhibit used in connection with a witness statement should be verified and identified by the witness and remain separate from the statement. " Exhibits should be numbered and, where a witness makes more than one statement in which there are exhibits in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement. STATEMENT OF TRUTH (PD 32 para 20.2) " The witness statement must contain a statement of truth in the following words: o I believe that the facts stated in this witness statement are true. " The statement of truth must be signed by the witness himself. Proceedings for contempt of court may be brought against a person who makes a false statement in a witness statement without an honest belief in its truth. " Rule 22.3 provides that if the maker of a witness statement fails to verify the witness statement by a statement of truth, the court may direct that it shall not be admissible as evidence. " In addition, PD 32, para 25.1 provides that if there is any defect in the witness statement, such as a wrongly worded statement of truth, the court may refuse to admit it as evidence in the case, and may refuse to allow the costs arising from its preparation. TEMPLATE " A template to help you draft a witness statement is set out at Appendix B(10). Use of Witness Statements at Trial " Having served a witness statement on the other side, the witness will usually be called to give oral evidence at trial, unless the court orders otherwise or the party uses the statement as hearsay evidence " As the witness statement will usually stand as the evidence-in-chief, the witness will normally simply be asked to confirm that it is true, and will then be subject to cross-examination by the other side. It is because it is subject to cross-examination that oral evidence from witnesses is considered to be the 'best' form of evidence as it has been tested in court. Additional examination-in-chief " The witness statement will stand as the evidence-in-chief of the witness unless the court orders otherwise. " When preparing a witness statement to be used at trial, it is, therefore, essential to ensure that the statement is comprehensive. " By r 32.5(3), a witness may amplify his statement or give evidence of matters that have arisen since he served his witness statement, or in response to matters dealt with by another party's witness, but only if the court gives permission. " Pursuant to the overriding objective, a court will usually allow amplification or additional examination-in- chief where admitting that evidence will not cause any other party injustice. " For example, additional expense to a party caused by a late, unjustified change of tack by his opponent may see an application under r 32.5(3) refused. Use by opponent " If a party who has served a witness statement does not call the witness or use the statement as hearsay evidence, any other party may use the witness statement as hearsay evidence (r 32.5(5)). Witness Summaries (r32.9) " Sometimes it will be very difficult to persuade a witness to give a witness statement " Rule 32.9 provides that Fred's (in example refused to give permission about poor safety because of fear of being fired) solicitors can apply to court without notice for an order to serve a 'witness summary'. " This provision applies where a party is required to serve a witness statement for trial but cannot obtain one. " The witness summary must contain: o (a) the evidence that would otherwise go in a witness statement; or o (b) if the party serving the summary does not know what evidence will be given, the areas about which he proposes to question the witness; and o (c) the witness's name and address. " Unless the court orders otherwise, the summary must be served on the other side by the deadline set for the exchange of witness statements. Sanctions for not serving a Witness Statement (r32.10) If a party does not serve a witness statement or witness summary within the proper time- limit, the witness cannot give oral evidence unless the court gives permission. Extension As soon as that becomes clear, he should contact all other parties and seek an agreement to an extension. Any agreement reached must be recorded in writing, but it must be remembered that the parties cannot alter the key case management dates set in fast track or multi-track cases. If no agreement is reached, or if a key case management date will not be met, an immediate application to the court should be made.) (If one party ready to serve and other not, they shold file statement with cover letter explaining situation, and an application might be made to strike out oppents case for failure to serve.) Affidavits " Affidavits are sworn statements of evidence (ie, the maker of the affidavit has to swear before a solicitor (not his own), or other authorised person, that the contents of the affidavit are true). " As we have seen, however, evidence at such applications is now given by witness statements, the statement of case itself or the application notice provided it contains a statement of truth. " In the great majority of cases, therefore, there is no need to go to the extra expense (an oath fee) of using sworn affidavits as evidence. Indeed, if you do, it is very unlikely that the court would allow you to recoup the extra cost from the other side. " On some occasions, however, it is still necessary to use affidavits. The Rules provide that if you are applying for a freezing injunction or search order, the evidence in support of such an application must be by way of affidavit rather than a witness statement. OUTCOME: 4 Exercise sound professional judgement in advising on the admissibility and relevance of evidence. see below Opinion Evidence Relevant facts personally perceived " The general rule is that opinion evidence is not admissible. " The function of a witness is to relate the facts to the court so that the court can draw its own conclusions. Example " However, there are some situations in which it may be difficult for a witness to separate fact and opinion. A typical example is speed. If a witness gives evidence that a vehicle was being driven at 'about 60 mph', that is only the witness's opinion. Nevertheless, it is difficult to see how else the witness could express what he saw unless he restricted himself to describing the speed as 'fast'. Accordingly, whilst the accuracy of the witness's assessment of the speed might be challenged, it would usually be admissible. " Similarly, a witness may be permitted to express a view that 'John was drunk'. Properly, the witness should relate the physical characteristics he observed which led to that conclusion (eg, slurred speech, glazed eyes, an unsteadiness of gait, breath smelling of alcohol, etc). However, the witness's opinion, whilst it might be challenged, will be admissible. " This is confirmed by s 3(2) of the Civil Evidence Act 1972, which states that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived Practical point " When a solicitor prepares a witness statement, it is vital that any relevant opinions expressed are based firmly on what the witness personally perceived. e.g. back up with facts Hearsay evidence (definition) " Hearsay evidence is defined in s 1(2)(a) of the Civil Evidence Act 1995 as 'a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated'. " Hearsay evidence may be an oral or a written statement made outside the courtroom, which is repeated to the court in order to prove the truth of the matter stated out of court. " Note that s 13 of the 1995 Act defines a 'statement' as 'any representation of fact or opinion'. " The statement that constitutes the hearsay evidence must itself constitute admissible evidence. So any fact must be relevant. Likewise, any opinion must be that of a non- expert based on that person's perception. " Therefore, in considering whether evidence is admissible hearsay, the following three questions must be answered in the affirmative: o (a) Does the evidence consist of an oral or written statement made outside the courtroom? o (b) Is that statement being presented to the court in order to prove that it is true? If the previous statement is being related, for example, to show a person's state of mind or simply to show that the statement was made, it will not be hearsay. o (c) Is the statement an admissible statement of fact or opinion? o EXAMPLE 1 Richard is giving evidence. He says in his evidence, 'Dave told me that Peter had stolen a car'. Richard is repeating what someone else said outside the courtroom, so the first part of the definition of hearsay is satisfied. But consider why Richard is giving this evidence. If it is as part of a case against Peter where it is relevant to show that Peter did, indeed, steal a car, then it will be hearsay. On the other hand, if Richard is giving evidence in a defamation claim brought by Peter against Dave then it will not be hearsay, as Richard is not giving the evidence to show that Peter stole a car. Indeed, this would be exactly what Peter does not want to show! Richard is relating the evidence simply to show that the statement was made. o Hearsay evidence may be either first-hand or multiple.