DR WS 10 & 11
Witness Statements and Expert Evidence
Introduction
For evidence to be admissible, it must be relevant and can affect the outcome of a trial relevance to be
judged by reference to the issue which the court is called upon to decide (O’Brien v Chief Constable of South
Wales)
The court can control which evidence is admissible, on which issues, how it is presented before the court and to what
extent it may be cross-examined by giving specific directions court may limit examination etc. r32.1
The court may give directions identifying or limiting the issues to which factual evidence may be directed; identifying
the witnesses who may be called or whose evidence may be read; or limiting the length or format of witness
statements r32.2(3)
o In exercising it powers, the court will have reference to the overriding objective in r1.1 and attempt to define
and identify issues between parties
Judicial approach
o To decide whether claim has been established “on the balanced o probabilities” judge will assess what
weight should be given to admissible evidence and answer the following questions:
Does the evidence address a disputed issue in the case?
If so, how important is that issue in the case?
What other evidence is available on the same issue?
Is the evidence more probative than any other evidence?
Witness evidence
r32.4(1): A witness statement is a signed statement of the evidence the witness would be allowed to give orally if
called to do so.
GENERAL RULE: Any fact which needs to be proved is to be proved at TRIAL by way of ORAL evidence in PUBLIC (and
at any other hearing in writing) r32.1(1)
o Witnesses can give evidence by any means (including video link) - r32.1
Where a witness is called to give oral evidence, their witness statement will stand as their evidence in chief parties
SHOULD NOT include in any witness statement evidence which the maker of the statement could not give orally –
r32.5
o Evidence should also meet test of relevance and satisfy requirements for admissibility as opinion and
hearsay evidence
Pre-trial exchange – Court will usually order witness statements to be exchanged pre-trial – r32.4(2)
o If a party does not do this, they need to obtain the court’s permission for that witness to give evidence
Objections to contents – standard practice is to notify the party IMMEDIATELY and try to resolve (within 28 days after
service of statement). If not, make an application to court to strike out inadmissible/irrelevant material
o Objections should only be for substantial issues and NOT minor technical points
Additional evidence
o Prepare supplemental witness statement
o Other party should be asked to agree to evidence being presented in court
o If other party does NOT agree, application for permission to rely on evidence should be made to the court
Stage 1 – what evidence is admissible?
Stage 2 – how should it be formatted?
STAGE 1: What evidence is admissible?
Relevant Only relevant evidence is admissible: O’Brian v CC South Wales Police
Not opinion Generally, opinion evidence will be INADMISSIBLE.
o This is because the function of a witness is to relay facts; it is then for the court to draw its own
1
, DR WS 10 & 11
conclusions from these facts.
oSo, statements such as, “he was disorganised” would be inadmissible. It is for the court to draw that
conclusion - what you want to include is WHY a witness believes he is disorganised; files
disorganised, late for meetings etc
Exceptions:
o s3(2) of the Civil Evidence Act 1972 makes clear that it is admissible to give evidence which
amounts to a ‘personal perception of relevant facts’
E.g. speed; if the witness states the vehicle was driving at “about 60 mph”, this is only an
opinion, but it is a perception of a fact and so may be admissible.
o s3(1) of the Civil Evidence Act 1972 provides that a witnesses’ opinion “on any relevant matter
on which he is qualified to give expert evidence shall be admissible in evidence”. Therefore,
expert witnesses CAN give opinions – when called as a witness, not hearsay
o In PROFESSIONAL NEGLIGENCE claims, a defendant is allowed to give his own expert opinion
on what he did or did not do which is said to amount to negligence in his witness statement.
o No need to be in format of Part 35 report defendant’s witness statement will suffice
Additional r32.5(3) - witnesses may amplify statement or give evidence on matters that have arisen since the
Evidence service of his witness statement, or in response to matters dealt with by another party’s witness
o Only if the court gives permission
o Must have a good reason for doing so
o Must NOT cause the other party any injustice e.g., through additional expense
Own r32.5(5) – if a party who has served a witness statement DOES NOT call witness/use statement as
evidence hearsay evidence, ANY OTHER PARTY may use witness statement as hearsay evidence
use by Kings Bench Guide para 10.63:
o Where a party decides NOT TO CALL A WITNESS whose witness statement has been served to
opponent
give oral evidence at trial:
prompt notice of this decision should be given to all other parties
party should also indicate whether they propose to put, or seek to put, the witness
statement in as hearsay evidence.
o Where the party who serves the witness statement INTENDS TO MAKE NO USE of it at all at trial:
the other party may decide to rely on it as hearsay evidence and should give prompt
notice of their intention to do so.
Hearsay evidence – Appendix B(11)
Oral or written statement made outside the courtroom repeated to the court in order to prove the truth of the matter stated in court
Step 1: “Hearsay”: s1(2)(a) of the Civil Evidence Act 1995
Define hearsay and o A statement (oral or written – any representation of relevant fact or opinion of non-
statement expert based on person’s exception which must be admissible evidence)
o Made otherwise than by a person while giving oral evidence in the proceedings
(made outside the court room)
o Which is tendered as evidence of the matters stated (presented to court to show
that it is true, not just that it was made)
o CANNOT be used to adduce expert evidence (by inclusion in witness statement/as an
exhibit to it)
Hearsay is therefore a statement made:
Outside of the court,
Which is repeated to the court
In order to PROVE THE TRUTH of the matter stated out of court
Which CANNOT be used to adduce expert evidence (by inclusion in witness
statement/as an exhibit to it)
When considering whether evidence is admissible hearsay, need to answer THREE questions:
o Does the evidence consist of an oral or written statement made outside the
courtroom?
o Is that statement being presented to the court in order to prove that it is true?
o 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 Is the statement an admissible statement of fact or opinion?
2
Witness Statements and Expert Evidence
Introduction
For evidence to be admissible, it must be relevant and can affect the outcome of a trial relevance to be
judged by reference to the issue which the court is called upon to decide (O’Brien v Chief Constable of South
Wales)
The court can control which evidence is admissible, on which issues, how it is presented before the court and to what
extent it may be cross-examined by giving specific directions court may limit examination etc. r32.1
The court may give directions identifying or limiting the issues to which factual evidence may be directed; identifying
the witnesses who may be called or whose evidence may be read; or limiting the length or format of witness
statements r32.2(3)
o In exercising it powers, the court will have reference to the overriding objective in r1.1 and attempt to define
and identify issues between parties
Judicial approach
o To decide whether claim has been established “on the balanced o probabilities” judge will assess what
weight should be given to admissible evidence and answer the following questions:
Does the evidence address a disputed issue in the case?
If so, how important is that issue in the case?
What other evidence is available on the same issue?
Is the evidence more probative than any other evidence?
Witness evidence
r32.4(1): A witness statement is a signed statement of the evidence the witness would be allowed to give orally if
called to do so.
GENERAL RULE: Any fact which needs to be proved is to be proved at TRIAL by way of ORAL evidence in PUBLIC (and
at any other hearing in writing) r32.1(1)
o Witnesses can give evidence by any means (including video link) - r32.1
Where a witness is called to give oral evidence, their witness statement will stand as their evidence in chief parties
SHOULD NOT include in any witness statement evidence which the maker of the statement could not give orally –
r32.5
o Evidence should also meet test of relevance and satisfy requirements for admissibility as opinion and
hearsay evidence
Pre-trial exchange – Court will usually order witness statements to be exchanged pre-trial – r32.4(2)
o If a party does not do this, they need to obtain the court’s permission for that witness to give evidence
Objections to contents – standard practice is to notify the party IMMEDIATELY and try to resolve (within 28 days after
service of statement). If not, make an application to court to strike out inadmissible/irrelevant material
o Objections should only be for substantial issues and NOT minor technical points
Additional evidence
o Prepare supplemental witness statement
o Other party should be asked to agree to evidence being presented in court
o If other party does NOT agree, application for permission to rely on evidence should be made to the court
Stage 1 – what evidence is admissible?
Stage 2 – how should it be formatted?
STAGE 1: What evidence is admissible?
Relevant Only relevant evidence is admissible: O’Brian v CC South Wales Police
Not opinion Generally, opinion evidence will be INADMISSIBLE.
o This is because the function of a witness is to relay facts; it is then for the court to draw its own
1
, DR WS 10 & 11
conclusions from these facts.
oSo, statements such as, “he was disorganised” would be inadmissible. It is for the court to draw that
conclusion - what you want to include is WHY a witness believes he is disorganised; files
disorganised, late for meetings etc
Exceptions:
o s3(2) of the Civil Evidence Act 1972 makes clear that it is admissible to give evidence which
amounts to a ‘personal perception of relevant facts’
E.g. speed; if the witness states the vehicle was driving at “about 60 mph”, this is only an
opinion, but it is a perception of a fact and so may be admissible.
o s3(1) of the Civil Evidence Act 1972 provides that a witnesses’ opinion “on any relevant matter
on which he is qualified to give expert evidence shall be admissible in evidence”. Therefore,
expert witnesses CAN give opinions – when called as a witness, not hearsay
o In PROFESSIONAL NEGLIGENCE claims, a defendant is allowed to give his own expert opinion
on what he did or did not do which is said to amount to negligence in his witness statement.
o No need to be in format of Part 35 report defendant’s witness statement will suffice
Additional r32.5(3) - witnesses may amplify statement or give evidence on matters that have arisen since the
Evidence service of his witness statement, or in response to matters dealt with by another party’s witness
o Only if the court gives permission
o Must have a good reason for doing so
o Must NOT cause the other party any injustice e.g., through additional expense
Own r32.5(5) – if a party who has served a witness statement DOES NOT call witness/use statement as
evidence hearsay evidence, ANY OTHER PARTY may use witness statement as hearsay evidence
use by Kings Bench Guide para 10.63:
o Where a party decides NOT TO CALL A WITNESS whose witness statement has been served to
opponent
give oral evidence at trial:
prompt notice of this decision should be given to all other parties
party should also indicate whether they propose to put, or seek to put, the witness
statement in as hearsay evidence.
o Where the party who serves the witness statement INTENDS TO MAKE NO USE of it at all at trial:
the other party may decide to rely on it as hearsay evidence and should give prompt
notice of their intention to do so.
Hearsay evidence – Appendix B(11)
Oral or written statement made outside the courtroom repeated to the court in order to prove the truth of the matter stated in court
Step 1: “Hearsay”: s1(2)(a) of the Civil Evidence Act 1995
Define hearsay and o A statement (oral or written – any representation of relevant fact or opinion of non-
statement expert based on person’s exception which must be admissible evidence)
o Made otherwise than by a person while giving oral evidence in the proceedings
(made outside the court room)
o Which is tendered as evidence of the matters stated (presented to court to show
that it is true, not just that it was made)
o CANNOT be used to adduce expert evidence (by inclusion in witness statement/as an
exhibit to it)
Hearsay is therefore a statement made:
Outside of the court,
Which is repeated to the court
In order to PROVE THE TRUTH of the matter stated out of court
Which CANNOT be used to adduce expert evidence (by inclusion in witness
statement/as an exhibit to it)
When considering whether evidence is admissible hearsay, need to answer THREE questions:
o Does the evidence consist of an oral or written statement made outside the
courtroom?
o Is that statement being presented to the court in order to prove that it is true?
o 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 Is the statement an admissible statement of fact or opinion?
2
