Summary Civil Litigation UNIT 19 + 21 - Evidence of Fact and Evidence at Trial
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Course
BPC
Institution
BPC
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19 + 21. Evidence of Fact and Evidence at Trial
Includes:
- Power to Control Evidence
- Witness Evidence (CPR 32)
o Oral Evidence;
o Written Evidence;
- Cross-Examination of written evidence;
- Witness Summaries;
- Inspection
- Affidavits;
- Notices to Admit Facts or Procure Documents
- Hearsay (CPR 3);
- Witness Summons (CPR 34);
- Depositions (CPR 34).
Power to Control Evidence
Under CPR 32.1, the court may control the evidence presented at trial, by giving
direction as to:
(a) The issues it requires evidence for;
(b) The nature of the evidence it requires to decide those issues;
(c) The way in which that evidence is to be presented to the court.
The court may also use its powers to exclude evidence that would typically be
admissible and limit cross-examination on evidence.
Witness Evidence
In the giving of evidence by a witness, the court has the power to give directions to:
(a) Identify and/ or limit the issues which factual evidence may be directed;
(b) Identifying the witness who may be called/ have evidence read;
(c) Limit the length or format of written witness statements.
32.2 The general rule of witness evidence in civil law is that any fact that needs to be
proven by witness evidence is to be proved:
(a) By oral evidence at trial; or
(b) By written evidence at any other hearing.*
Oral Evidence
, Oral evidence at trial should first take the form of a witness statement, unless
the court orders otherwise, upon application (that the witness is a child, illiterate,
protected party).
- A ‘witness statement’ being the evidence a statement maker would
present to the court if called to give oral evidence. Unless otherwise
directed, the statement should be served at least 14 days before the
hearing on which it is to be relied.
32.5 If a party has served a witness statement and intends to rely on this evidence at trial,
the witness must be called to give oral evidence, unless ordered otherwise.
- The witness statement shall stand as the evidence in chief (to save trial time and
immediately go to cross), unless the court orders otherwise.
- If a party provides evidence in chief at trial, they can still be cross-examined on their
statement or deposition
If the witness does not appear in court, the party is to put the statement in as hearsay evidence. If
they do not, any other party can put the party in hearsay evidence, unless the court orders
otherwise.
Where a witness gives evidence, they may obtain the permission of the court to:
(a) Amplify their witness statement; and
- ‘Amplify’ means to go into further evidence’.
(b) Give evidence on matters, not it in the statement, which have arisen since the
statement was served.
The court will only permit if there is good reason not to confine the witness to the contents of
the statement.
With the permission of the court supplementary witness statements can be issued
if the witness wishes to stray significantly from their initial statement.
Written Evidence
*32.6 ‘Any other hearing’ refers to anything other than trial: summary or default
judgement, injunction applications etc. In such hearings, written evidence can be
taken at face value, without the need for calling the witness (usually statement
but also application notices, statements of case, and witness summaries).
- All written evidence is to be accompanied by a statement of truth; which will
render the maker liable for contempt of court, if a false statement is made.
The written evidence may only be used for the purpose of the proceedings in which it
was served, unless the maker agreed, the court orders, or it is a public hearing.
32.7 At ‘any other trial’, where oral evidence is not required or tendered, a party can
apply to cross-examine the witness.
- If the court grants this permission, but the person does not attend, the court will have
the discretion to choose if the evidence can still be relied upon.
Witness Summaries
32.9 Any party required to serve a witness statement but is unable to obtain one, may
without notice apply for permission to serve a witness summary instead.
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