Summary
Summary Civil Litigation - Evidence of Fact Notes
Civil Litigation Syllabus Notes on Evidence of Fact, used in conjunction with The White Book 2020 from BPTC 2019/2020.
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SYLLABUS 17 EVIDENCE OF FACT Evidence of fact
Witness statements and witness summonses
Notices to admit facts and prove documents
REMEMBER:
Best way to adduce evidence direct, oral evidence.
Should summons all witnesses in the jurisdiction and can be compelled so have certainty
they will appear and b/c if they are experts, may be required to give evidence in other
trials which they may favour if paid more.
WS should contain factual evidence for your case.
1. Evidence of fact and Witness Statements
CPR: Part 32
32.1— Power of court to control evidence
The court may control the evidence by giving directions as to- the issues on which it
requires evidence, the nature of the evidence which it requires to decide those issues; and
the way in which the evidence is to be placed before the court. The court may exclude
evidence that would otherwise be admissible. The court may limit CE.
32.2— Evidence of witnesses
The general rule is that any fact which needs to be proved by the evidence of witnesses is
to be proved at trial, by their oral evidence given in public; and at any other hearing, by
their evidence in writing. This is subject to any provision to the contrary contained in these
rules or elsewhere or to any court order. 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 WS.
32.3 The court may allow a witness to give evidence through a video link or other means.
32.4 Requirement to serve witness statements for use at trial
WS = written statement signed by a person which contains the evidence which that person
would be allowed to give orally. The court will order a party to serve on the other parties
any WS of the oral evidence which the party serving the statement intends to rely on in
relation to any issues of fact to be decided at the trial.
The court may give directions as to— (a) the order in which WS are to be served; and (b)
whether or not the WS are to be filed.
32.5 Use at trial of witness statements which have been served. If a party has served a
WS; and he wishes to rely at trial on the evidence of the witness who made the statement,
he must call the witness to give oral evidence unless the court orders otherwise or he puts
the statement in as hearsay evidence. Where a witness is called to give oral evidence, his
WS shall stand as his evidence in chief unless the court orders otherwise.
, SYLLABUS 17 EVIDENCE OF FACT
(3) A witness giving oral evidence at trial may with the permission of the court amplify his
WS; and give evidence in relation to new matters which have arisen since the WS was
served on the other parties.
The court will give permission under para (3) only if it considers that there is good reason
not to confine the evidence of the witness to the contents of his witness statement.
If a party who has served a WS does not call the witness to give evidence at trial; or put the
WS in as hearsay evidence, any other party may put the WS in as hearsay evidence.
Commentary
32.5.1 “witness statement … as … evidence in chief” (r.32.5(2))
This builds on r.32.1(c) (court’s power to give directions as to way in which evidence is to be
placed before the court) b/c P’s are required to serve their WS on other P’s in advance of
trial, to promote settlement and avoiding surprise. The WS should normally stand as
evidence-in-chief to reduce trial time. The Court retains discretion - may order the witness’s
evidence/part of it should be given oral rather than written. BUT the savings in time can be
wasted b/c court time can be consumed by submissions as part of WS or CE on irrelevant
issues. Where a court exercises its power to strike out of a WS on the ground that it is
irrelevant or for some other reason, in effect the court is limiting evidence in-chief.
32.5.2 Amplification of evidence (r.32.5(3) and (4))
Amplification circumstances- where events occur, or matters are discovered, after their
statements were served, or where responses to matters dealt with in WS of witnesses of
other parties are required. Where a W is allowed to amplify, prejudice to the opponent
should not be regarded routinely as remediable by an order for costs. A late, unjustified
change of tack may be an injustice to the opponent that in the light of OO should not be
permitted.
Admiralty and Commercial Courts Guide supplemental WS should normally be served
where the W proposes materially to add to, alter, correct or retract from what is in their
original WS. Permission will be required for the service of a supplemental WS.
32.5.3 Witness not called
r32.5(5) - the “other party” is not entitled to put the WS in evidence; the court retains a
discretion. The rule does not allow a party to put in merely some of the WS. Where C has
served on D a WS made by another person (X), but does not call X or put in his WS as
hearsay evidence, and (as r.32.5(5) permits) B puts it in as hearsay evidence, C may then
apply for the court’s permission to have X called as a witness for CE on the statement
provided to them. Here, r.33.4 is triggered and C does not fall foul of the rule that prevents
a party from CE his own witness.
32.5.3.1 Use of Witness Statements where party failing to attend trial
Where the court proceeds with a trial in the absence of a party who has filed WS, those
statements are not hearsay evidence put in by him and relied on at trial.
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