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Notes on Civil Evidence
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Civil Evidence (Session 12)Court control of evidence and discretion to exclude
CPR r32.1) Court may control the evidence by giving directions as to
(a) issues on which it requires evidence
(b) The nature of the evidence required to decide those issues
(c) The way in which the evidence is to be placed before the court
The court may limit XX
These directions may be made
- As a case management exercise (in CMC/PTR) or
- By the trial judge
Such directions dealing with trial evidence tend to be made applying the OO
NB:
• This does NOT mean that the court has a discretion to allow in at trial inadmissible evidence à it
gives the court power to disallow otherwise admissible evidence
• Although, the court does have power to give directions on ‘the nature of the evidence which it
requires to decide the issues in the case
Summary:
The court may control evidence by giving directions to:
• Limit XX
• Limit/identify the issues on which factual evidence may be adduced
o E.g., by controlling the parties costs budgets
• Identifying the witnesses who may be called/whose evidence may be read
• Limit the length/format of the W/S
NB: this is a general discretion
When making any case management decision, the court will have regard to
• ANY available costs budgets of the parties AND
• the costs involved in EACH procedural step
At track allocation
à court’s primary concern = ensure that the issues btw the parties are identified, and that necessary
evidence is prepared and disclosed (PD29, para 4.3)
Applications to extend time for complying with a case management direction
• written evidence in support must be served with the application notice on the respondent at least 3
clear days before the hearing
• interim applications are filed with the court, NOT issued
NB: there are 14-day time limits for serving the application notice and evidence in support of summary
judgment and interim payment applications
Discretion to exclude evidence
The court has a discretion to exclude evidence that would otherwise be admissible (r32.1(2))
- general discretionary power to control and exclude evidence
- no express limitations on the nature of this power
this power can be used to
• minimise the burdens on litigants
• exclude peripheral material which is NOT essential to the just determination of the claim
• exclude evidence obtained illegally, by trickery, bribery or deception, or in breach of HRA 1998
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,Evidence of witnesses
A big % of factual evidence comes from witness testimony – usually set out in written form before the
hearing in a signed W/S
Distinction btw
Interim • evidence is generally given in the form of witness statements
hearings → • BUT a range of written evidence CAN be used
o As long as supported by a statement of truth, these forms of written
evidence are allowed:
§ Application notices
§ Statements of case
§ Certificates of service
§ Formal affidavits (have to be sworn)
• might be required in contempt of court proceedings
• BUT unusual because of extra cost and formalities
Trials → • where evidence is generally given by witnesses testifying from the witness
box.
• witness usually HAS to attend
• reluctant witnesses may be compelled by serving them w/ a witness
summons
Process at trial
• witness who is called @ trial goes into the witness box and is sworn in
• witness testifies by answering mainly non-leading qs
• witness is XX-ed, mainly with leading qs by the other side
• potentially limited re-examination – using non-leading qs
o (usually) an attempt to rehabilitate evidence
Although the 2 types of W/S look the same and have the same formality requirements, there is a
fundamental difference btw W/S used at
(a) interim hearings
(b) trials
Difference = content! (even where witness is the same at both types of hearings)
Interim hearings Trials
W/S required to address facts relevant to the W/S required to address the facts relevant to
particular interim hearing and specific the substantive dispute
requirements for the particular type of order o Issues raised at earlier interim
under the CPR/relevant PD applications = almost ALWAYS
o These points may have very little irrelevant at trial stage
connection to the main
substantive dispute
Similarity = Both will usually make reference to a range of documentary evidence (inclu items of real
evidence) supporting the points being made by a witness
o These will be formally exhibited to the W/S and form part of the witness’ evidence
o Court tends to rely heavily on exhibits (more difficult to fabricate than a W/S) such as:
§ Contemporaneous documents
§ Documents from independent sources
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, Important general principles
(1) courts in E&W operate a ‘cards face up on the table’ approach to trial preparation
• parties are NOT allowed to keep evidence a secret and surprise the other side at trial
• consequences for a party who does this:
o court refuses permission to use the evidence
o court (might) order an adjournment to other side to allow assessment of new evidence AND
the costs of adjournment to be borne by the side seeking to introduce ‘surprise evidence’
Court will give directions for disclosure of witness statements at the track allocation stage (usually)
• but wrt multi-track claims à direction often made at first CMC
(2) Usual direction = mutual disclosure of W/S by simultaneous exchange
(deadline to be given by the court, usually in the form that exchange must take place by 4pm on a stated
date, often a Friday)
Sanction for not serving trial W/S in time specified in the directions à relevant witness may
NOT be called to give oral evidence unless the court gives permission
à witness debarred from being called at trial
Court can grant relief from sanctions under Denton v White principles if the court is satisfied in
light of these considerations:
(1) was the breach serious or significant?
(2) was there a good reason for the breach?
(3) the court needs to consider all the circumstances, including in particular the need for
litigation to be conducted efficiently and at proportionate cost, and the need to enforce
compliance (here) with the rules in the CPR.
(3) Unless the court orders otherwise, a witness’ W/S shall stand as his EIC
• Starting point = W/S will stand as the EIC of witness unless COO (r32.5(2) (in fast and multi-track
claims)
• Reason why EICs tend to be v short – might not be much more than confirming
o Name
o Address
o Occupation
o Relationship with the parties
o Adopting their witness statement, and confirming its contents are true to the best of their
knowledge and belief.
BUT à counsel may seek permission to ask supplementary questions to amplify the W/S or to
cover new matters arising since the W/S was served (r32.5(3)+(4))
• Granted on a very limited basis and on quite restrictive conditions (an exception!)
‘good reasons’ have to be based on mere amplification/dealing with new matters, NOT
simply forgetting to include something or a deficiency
• Further questions can only be asked if the judge grants permission to do so
o Permission has to be sought and will ONLY be granted if there is a ‘good reason’
NOT to confine the witness to the contents of the disclosed statement
o Way to prevent need to seek permission = detailed, full drafting of W/S
• If amplification of W/S at trial is too strictly limited, there is a risk that statements will
become over-elaborate and that costs of that preparation will be accordingly increased
• BUT if amplification too readily allowed, there is a risk that statements will fail to deal w/
impt issues
• Where a party’s witness is allowed to amplify, prejudice to the opponent should NOT be
regarded routinely as remediable simply by an order for costs
• A late, unjustified change of tack MAY be regarded as an injustice to the opponent which,
in the light of the OO, should not be permitted
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