Chapter 12: Witness Evidence

• Direct evidence


  Oral evidence of a witness who perceived the facts
• Circumstantial evidence


  Evidence that does not directly establish a fact but allows the court to decide whether a particular fact existed
• Direct evidence


  • Witness account of a pedestrian being knocked down by a car
• Circumstantial evidence


  • Engineer's investigation of skid marks to suggest car was speeding
• Signed statement


  Evidence at trial should be from witnesses who have provided a signed statement setting out their evidence, endorsed with a statement of truth and served on the opponent
• Witness statement not served

  Party cannot call that witness to give evidence unless the court gives permission
• Competent witness


  A witness who can be lawfully called to give evidence
• Serving a witness summons

  1. Court will issue a witness summons on request of a party and serve the summons on the witness at least seven days before the hearing

  2. Witness is entitled to conduct money for travel and lost time
• Party decides not to call a witness

  Other party can refer to the witness statement, which the court will treat as hearsay evidence
• Witness statement


  Sets out in detail the evidence the witness will give on oath to the judge in court, only addressing facts in issue
• Statement of truth


  Witness statement should include a statement that the witness believes the facts stated are true and understands proceedings for contempt of court may be brought for false statements
• Witness statement by party's representative


  • Firm's name and address should be given, with confirmation that the maker is the party's legal representative
  • Maker should preface any reference to facts outside personal knowledge with 'I am informed...'
• Exchange of witness statements

  Parties must exchange witness statements of those witnesses they intend to rely on at trial by a certain date
• Witness summary


  If a witness statement cannot be obtained before the exchange date, a party may serve a witness summary identifying the witness and summarising the factual issues their evidence will cover, with permission of the court
• Affidavit


  A written statement confirmed by oath or affirmation, predominantly for use as evidence in court, containing a verification that the contents are true
• Hearsay evidence


  A statement made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of matters stated
• All witness statements are hearsay at the point the witness signs, but cease to be hearsay if the witness attends court to give evidence</b>
• Claimant's case


  1. Claimant's witnesses give evidence in chief, then are cross-examined by the defendant

  2. Defendant's witnesses then give evidence and are cross-examined by the claimant
• Evidence in chief


  Evidence actively presented by the party
• Cross-examination


  Questions asked by the opposing party to probe the witness's evidence
• Witness unable to attend court

  Court will treat their signed statement as hearsay evidence, which will be given less weight as the other side cannot cross-examine the witness
• In considering the weight to give hearsay evidence, the court must consider whether it would have been reasonable or practicable to force the witness to attend, and the reliability of the hearsay evidence
• ss is mistaken in their recollection of the key facts of the case
• Witness evidence in a trial

  1. Claimant's witnesses cross-examined

  2. Defendant's witnesses give evidence and cross-examined by claimant
• Cross-examination


  Party asks opponent's witnesses questions
• If a witness is unable to attend but a party wishes the court to consider the signed statement of the witness at the trial, the court will treat this as hearsay evidence
• A judge will not place as much weight on hearsay evidence
• Factors the court must consider in weighing hearsay evidence

  • Whether it would have been reasonable or practicable to force the witness to attend
  • Whether the original statement was made contemporaneously with the event
  • Whether the evidence involves multiple hearsay
  • Whether there was any motive to misrepresent the position stated in the hearsay or to conceal facts
  • Whether the original statement was edited
  • Whether there can be any suggestion that the events leading to the evidence being presented as hearsay evidence constitute an attempt to prevent proper evaluation as to its weight
• The court will likely give little weight to the witness statement in the example provided
• In making their judgment, the trial judge will indicate the weight that they have attached to any hearsay evidence
• Process for relying on hearsay evidence


  1. Party wishing to rely on hearsay evidence must serve a notice on their opponent

  2. If the witness will be attending the trial, service of the witness statement itself constitutes notice

  3. If the witness will not be attending the trial, the party must serve a formal document giving notice
• Response of adverse party to hearsay notice

  1. Party may seek to call the witness at trial or seek to attack the witness's credibility at trial

  2. Party must act within 14 days of receiving the hearsay notice
• Hostile witness


  A witness who shows a significant lack of cooperation to tell the truth on behalf of the party who called them or gives their evidence in a way which is entirely inconsistent with their witness statement
• If a judge declares a witness as hostile, the witness can then be cross-examined on the facts of the case
• In any civil proceedings, the fact that a person has a conviction for an offence in the United Kingdom is admissible to prove, where relevant, that they committed that offence unless proved otherwise
• A party may rely on previous incidents or conduct as evidence of similar conduct in the case in question, so long as it is relevant
• Notice to Admit Facts

  1. Party serves on opponent no later than 21 days before trial

  2. Facts admitted are deemed established and then need not be proved

  3. If facts were not admitted but then proved at trial, the court may order the party who refused to admit to pay the costs associated with proving the facts
• Notice to Admit or Produce - Documents (Notice to Prove)


  1. Party can serve notice if they believe a document produced by an opponent is not authentic

  2. Notice must specify the document being challenged and must be served by the last day available for witness statement exchange or within seven days of disclosure of the document

  3. If the recipient proves the authenticity of the document at the hearing, the court may make a costs order against the party who served the notice
• Letter of request


  Used when a court in one jurisdiction asks the court in another jurisdiction to take evidence on its behalf, either orally or in writing
• Types of evidence that are inadmissible


  • Opinion evidence (except from experts)
  • Evidence that is privileged
  • Communications that are, by their nature, 'without prejudice'
  • Evidence protected by public interest immunity
  • Any evidence that is irrelevant