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BPTC/BTC Civil Litigation- (Evidence of Fact & Expert Evidence)
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- Civil Litigation
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- City University (City)
BPTC/BTC Civil Litigation- (Evidence of Fact & Expert Evidence)
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19 Evidence of Fact1. evidence of fact in civil proceedings
2. witness statements and witness summonses
3. notices to admit facts and notices to prove documents
Examinable Material
1. Examinable material on evidence of fact in civil proceedings will consist of the power
of the court to control evidence; the general rule regarding evidence of witnesses;
evidence by video link or other means; evidence in proceedings other than at trial;
order for cross-examination; false statements; affidavit evidence; form of affidavit;
evidence by deposition; evidence by video link as an alternative to obtaining a
deposition; conduct of examination; and use of deposition at a hearing. The relevant
material is addressed in CPR 32.1-3, 32.6, 32.7, 32.14, 32.15-16; CPR 34.8-9 and
34.11; and the commentary at paragraph 34.8.6 of Volume 1 of 'Civil Procedure' (the
White Book) 2022.
2. Examinable material on witness statements and witness summonses will consist of
the requirement to serve witness statements for use at trial; use at trial of witness
statements which have been served; witness statements as evidence in chief;
amplification of evidence; witness not called; use of witness statements where party
failing to attend trial; form of witness statement; witness summaries; consequence
of failure to serve witness statement or summary; cross-examination on a witness
statement; use of witness statements for other purposes; availability of witness
statements for inspection; witness summonses; issue of a witness summons; witness
summons in aid of inferior court or of tribunal; time for serving a witness summons;
who is to serve a witness summons; and right of witness to travelling expenses and
compensation for loss of time. The relevant material is addressed in CPR 32.4, 32.5,
32.8-13; CPR 34.1-7; and the commentary at paragraphs 32.5.1-32.5.3.1 of Volume 1
of 'Civil Procedure' (the White Book) 2022.
3. Examinable material on notices to admit facts and notices to prove documents will
consist of notice to admit facts; and notice to admit or produce documents. The
relevant material is addressed in CPR 32.18-19.
,Examinable Material
1. Examinable material on evidence of fact in civil proceedings will consist of the power of the
court to control evidence; the general rule regarding evidence of witnesses; evidence by
video link or other means; evidence in proceedings other than at trial; order for cross-
examination; false statements; affidavit evidence; form of affidavit; evidence by deposition;
evidence by video link as an alternative to obtaining a deposition; conduct of examination;
and use of deposition at a hearing. The relevant material is addressed in CPR 32.1-3, 32.6,
32.7, 32.14, 32.15-16; CPR 34.8-9 and 34.11; and the commentary at paragraph 34.8.6 of
Volume 1 of 'Civil Procedure' (the White Book) 2022.
32.1— Power of court to control evidence
32.1
(1) The court may control the evidence by giving directions as to—
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be
admissible.
(3) The court may limit cross-examination(GL).
32.2— Evidence of witnesses—general rule
32.2
(1) The general rule is that any fact which needs to be proved by the evidence of witnesses
is to be proved—
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing.
(2) This is subject—
(a) to any provision to the contrary contained in these Rules or elsewhere; or
(b) to any order of the court.
(3) The court may give directions—
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements.
32.3 Evidence by video link or other means
32.3
The court may allow a witness to give evidence through a video link or by other means.
32.6— Evidence in proceedings other than at trial
32.6(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the
trial is to be by witness statement unless the court, a practice direction or any other
enactment requires otherwise.
(2) At hearings other than the trial, a party may rely on the matters set out in—
(a) his statement of case; or
(b) his application notice, if the statement of case or application notice is verified by a
statement of truth.
,32.7— Order for cross-examination
32.7(1) Where, at a hearing other than the trial, evidence is given in writing, any party may
apply to the court for permission to cross-examine the person giving the evidence.
(2) If the court gives permission under paragraph (1) but the person in question does not
attend as required by the order, his evidence may not be used unless the court gives
permission.
32.14 False statements
32.14Proceedings for contempt of court may be brought against a person who makes or
causes to be made a false statement in a document, prepared in anticipation of or during
proceedings and verified by a statement of truth, without an honest belief in its truth.
(Part 22 makes provision for statements of truth.)
(Part 81 contains provisions in relation to proceedings for contempt of court.)
32.15— Affidavit evidence
32.15(1) Evidence must be given by affidavit(GL), instead of or in addition to a witness
statement if this is required by the court, a provision contained in any other rule, a practice
direction or any other enactment.
(2) Nothing in these Rules prevents a witness giving evidence by affidavit(GL) at a hearing
other than the trial if he chooses to do so in a case where paragraph (1) does not apply, but
the party putting forward the affidavit(GL) may not recover the additional cost of making it
from any other party unless the court orders otherwise.
(Rule 32.12 makes provision about the use of affidavits for purposes other than the
proceedingsin which they are served.)
32.16 Form of affidavit
32.16
An affidavit(GL) must comply with the requirements set out in Practice Direction 32.
34.8— Evidence by deposition
34.8(1) A party may apply for an order for a person to be examined before the hearing takes
place.
(2) A person from whom evidence is to be obtained following an order under this rule is
referred to as a “deponent” and the evidence is referred to as a “deposition”.
(3) An order under this rule shall be for a deponent to be examined on oath before—
(a) a judge;
(b) an examiner of the court; or
(c) such other person as the court appoints.
(Rule 34.15 makes provision for the appointment of examiners of the court.)
(4) The order may require the production of any document which the court considers is
necessary for the purposes of the examination.
(5) The order must state the date, time and place of the examination.
(6) At the time of service of the order the deponent must be offered or paid—
(a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of
examination; and
(b) such sum by way of compensation for loss of time as may be specified in Practice
Direction 34A.
(7) Where the court makes an order for a deposition to be taken, it may also order the party
who obtained the order to serve a witness statement or witness summary in relation to the
evidence to be given by the person to be examined.
, (Part 32 contains the general rules about witness statements and witness summaries.)
34.9— Conduct of examination
34.9(1) Subject to any directions contained in the order for examination, the examination
must be conducted in the same way as if the witness were giving evidence at a trial.
(2) If all the parties are present, the examiner may conduct the examination of a person not
named in the order for examination if all the parties and the person to be examined consent.
(3) The examiner may conduct the examination in private if he considers it appropriate to do
so.
(4) The examiner must ensure that the evidence given by the witness is recorded in full.
(5) The examiner must send a copy of the deposition—
(a) to the person who obtained the order for the examination of the witness; and
(b) to the court where the case is proceeding.
(6) The party who obtained the order must send each of the other parties a copy of the
deposition which he receives from the examiner.
34.11— Use of deposition at a hearing
34.11(1) A deposition ordered under rule 34.8 may be given in evidence at a hearing unless
the court orders otherwise.
(2) A party intending to put in evidence a deposition at a hearing must serve notice of his
intention to do so on every other party.
(3) He must serve the notice at least 21 days before the day fixed for the hearing.
(4) The court may require a deponent to attend the hearing and give evidence orally.
(5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness
statement for the purposes of rule 32.13 (availability of witness statements for inspection).
Evidence by video link
34.8.6 See r.32.3. As an alternative to obtaining a deposition, evidence by video link will be
preferable (and probably cheaper) in some cases and has the further advantage that the trial
judge will hear the evidence first hand.
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