BVC Civil Procedure Evidence In Civil Proceedings Part

BVC Civil Procedure Evidence In Civil Proceedings Part 1

Burden and standard of proof • The party who adduces a fact must prove it • bears both the evidential and the legal burden of proof. • “on the balance of probabilities”. (per Lord Nicholls in Re H (minors) (sexual abuse) [1996] 1 All ER. 1, 16). • Stephens v Cannon [2005] EWCA Civ 222

Witness Statements • (32. 12(1) (a) every fact that needs to be proven by a witness giving evidence should be proven by that witness giving oral evidence. • Affidavits used to be used (sworn) rarely happens nowadays (eg: search order applications). • The judge will set a date for exchange • Usually simultaneously, but the court may order them to be exchanged sequential exchange if necessary (see Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 WLR) • Common practice is to contact the other side to see if they are ready to exchange. • should contact the other side and try to agree a realistic deadline (bearing in mind that certain dates cannot be varied by agreement – see Parts 28 and 29).

Witness Statements • If other side is not ready you should file and explain the position • Supplementary WSs are not mentioned in the CPR -best course of action is to apply for permission • If a new witness is discovered after the deadline it is unlikely that the court will allow unless the circumstances are exceptional (Stroh v London Borough of Haringey (1999) Lawtel July 13. • late amendments - best to apply for permission Mealey Horgan plc v Horgan (Times July 6 1999)

Witness Statements • Witness Summaries - 32. 9 • Adverse Inferences if not called -32. 5(5) • No further evdnc in chief can be given without permission of the court (32. 5(3) to: • amplify evidence • give evidence on new matters

Hearsay evidence • s 2 CEA 1995 - (33. 2(1) (a) • (33. 2(2) – if not to be called the other party must be notified • In every other case a hearsay notice is needed (33. 2(3) • General power to exclude - 32. 1(2). • Application/notification must be made to cross examine or attack credibility (33. 4 -33. 5, Douglas v Hello! Ltd [2003] EWCA Civ 332 • Weight – s 4 CEA

Witness summonses • Witness summonses - 34. 3. • Permission is not needed unless - less than 7 days before trial/ to attend on date other than trial date/to attend a different hearing • 34. 3(4) - Harrison and Harrison v Bloom Cammilin (a firm) Lawtel 14 th May 1999 • Summons to produce documents - 34. 2(5).

Other matters • Live video link – permission needed Polanski v Conde Nast Publications Ltd [2005] UKHL 10 • Hearsay issues raised in documents – admitted unless a notice (N 268) (32. 19) • Interesting case – Jones v University of Warwick [2003] 1 WLR 954