Evidence Chapter 12 PDF

Evidence 215 CHAPTER 12 Evidence 12.1 Introduction 215 12.2 Witness evidence 217...

Evidence 215 CHAPTER 12 Evidence 12.1 Introduction 215 12.2 Witness evidence 217 12.3 Form of witness statements 218 12.4 Use of witness statements at trial 222 12.5 Witness summaries (r 32.9) 222 12.6 Sanctions for not serving a witness statement (r 32.10) 223 12.7 Affidavits 224 12.8 Opinion evidence 224 12.9 Hearsay evidence 225 12.10 Use of plans, photographs and models as evidence (r 33.6) 233 12.11 Notice to admit facts (r 32.18) 233 12.12 Notice to admit or prove documents (r 32.19) 233 12.13 Expert evidence (Part 35) 233 12.14 Professional negligence cases: the defendant’s own evidence 243 12.15 Assessors (r 35.15) 243 LEARNING OUTCOMES After reading this chapter you will have learned: how the courts control evidence the role of witness statements how to draft a witness statement for use at trial when opinion evidence from a non-expert witness is admissible the definition of hearsay evidence how to use hearsay evidence how a judge will assess hearsay evidence possible responses to the service of hearsay evidence the role of expert evidence how to use expert evidence. 12.1 INTRODUCTION 12.1.1 Relevance Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court is called upon to decide. (per Lord Bingham of Cornhill in O’Brien v Chief Constable of South Wales Police UKHL 26, (2005) The Times, 29 April) 12.1.2 Judicial control The rules on evidence are contained primarily within Parts 32 and 33 of the CPR 1998. These rules do not change the law on the admissibility of evidence, save for the fact that the court, as might be expected through its court management powers, can control the evidence brought before the court. 216 Civil Litigation Rule 32.1 states: (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. In addition, under r 32.2(3): (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. In exercising its powers under this Rule, the court will bear in mind the overriding objective in r 1.1 and will attempt to define and identify the issues between the parties. For example, the court may decide, prior to the trial, that a particular issue that has been raised is no longer important, and may make an order excluding any evidence the parties intended to use in relation to that particular issue. Or the court may prescribe by list what issues should proceed to trial. Any party dissatisfied by such an order must appeal it or otherwise follow the order (Bailey v GlaxoSmithKline EWCA Civ 1924). 12.1.3 Judicial approach How does a trial judge decide whether a claimant has established the claim ‘on the balance of probabilities’? The judge will have to assess what weight should be given to the admissible evidence, and in particular should answer the following questions: (a) Does the evidence address a disputed issue in the case? (b) If so, how important is that issue in the case? (c) What other evidence is available on the same issue? (d) Is the evidence more probative than any other evidence? A trial judge is likely to have to weigh up many different types of evidence, such as oral evidence from expert and non-expert witness, as well as documents produced by the parties. The credibility of a witness is often said to be a key point. But what is meant by this? ‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary  Evidence 217 documents and admitted or incontrovertible facts and probabilities must play their proper part. (per Lord Pearce in Onassis v Vergottis 2 Lloyds Rep 403 at 431) There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non- production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence. (per Arden LJ in The Matter of Mumtaz Properties Ltd v Ahmed EWCA Civ 610 at and ) 12.1.4 Factual and expert evidence Evidence falls into two broad types. First, factual evidence from a witness (see 12.2 to 12.9). Secondly, expert evidence from a suitably qualified expert (see 12.13). 12.2 WITNESS EVIDENCE 12.2.1 General rule Under r 32.2(1), the general rule is that any fact that needs to be proved is to be proved at trial by oral evidence given in public, and at any other hearing by evidence in writing. The Rules also provide that the court may allow a witness to give evidence by any means, including a video link. We have just seen that 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. In addition, r 32.5(2) provides another general rule, that where a witness is called to give oral evidence, their witness statement will stand as their evidence in chief. As a result, no party should include in any witness statement evidence which the maker of the statement could not give orally (see JD Wetherspoon plc v Harris (Practice Note) EWHC 1088 (Ch)). The evidence should meet the test of relevance (see 12.1.1) and, where appropriate, satisfy the requirements for admissibility as opinion (see 12.8) and hearsay (see 12.9) evidence. 12.2.2 Pre-trial exchange As already seen in Chapter 9, when giving directions for trial, the court will usually order witness statements to be exchanged. Rule 32.4(2) states that the court will order a party to serve on the other parties any witness statement of the oral evidence upon which the party serving the statement intends to rely in relation to any issue of fact to be decided at the trial. As outlined at 12.6, where a witness statement is not served, the witness will be allowed to give evidence at trial only with the court’s permission. The court may give directions as to the order in which witness statements are to be served. Usually the court will order simultaneous exchange, but exceptionally it may order one party (usually the claimant) to serve first (sequential exchange). Once a witness statement is served, it ceases to be privileged (see further 11.11.1.4). 218 Civil Litigation 12.2.3 Objections to contents By r 32.4(1), a witness statement is a written statement signed by a person that contains the evidence which that person would be allowed to give orally. So what should you do if, after exchanging witness statements, you object to the relevance or admissibility of material contained in your opponent’s statements? Best practice is to notify the other party of your objection immediately (and certainly within 28 days after service of the statement) and seek to resolve the dispute, but, failing that, make an application to the court to strike out the inadmissible or irrelevant material (see the King’s Bench Court Guide, para 10.60(3)). Objection should only be taken to substantial issues, not minor technical points (Lifestyle Equities v Royal County of Berkshire Polo Club Ltd EWHC 1244 (Ch)). [I]n making a decision to remove passages from witness statements and disallowing evidence, the court has to have regard to the overriding objective, and in particular doing justice between the parties. It is not appropriate for the court to spend time dealing with unpleaded issues which are not relevant to the decision that the court is being asked to make at trial, and to allow in evidence of what appears to be assertion and supposition with no supporting weight. (Haque v Fardhi EWHC 366 (KB) per Simpkiss J at ) 12.2.4 Additional evidence What if, after the exchange of witness statements, a party wants a witness to give additional evidence? It may well be that a witness needs to deal with events occurring, or matters discovered, after the exchange, or in response to matters dealt with by another party’s witness. The answer is to prepare and serve a supplemental witness statement dealing with these points as soon as possible. The other party should be asked to agree to the evidence being adduced at trial. Failing that, an application for permission to rely on the evidence should be made to the court (see the King’s Bench Court Guide, para 10.62). 12.3 FORM OF WITNESS STATEMENTS 12.3.1 Structure and contents Rules relating to the form of witness statements are set out in paras 17–20 of PD 32. By para 17.1, the witness statement should be headed with the title of the proceedings, and by para 17.2 the top right-hand corner should state: (a) the party on whose behalf the statement is filed (eg Claimant); (b) the initials and surname of the witness (eg ML Banister); (c) the number of the statement in relation to that witness (eg 1st, 2nd); (d) the identifying initials and number of each exhibit referred to (eg MLB1-3, MLB4-7); (e) the date the statement was made (eg 7 February 2024); and (f ) the date of any translation. Other key formality requirements in PD 32 are: (a) the witness statement should be divided into numbered paragraphs (para 19.1(5)); (b) all numbers, including dates, should be expressed in figures and not words (para 19.1(6) and see also 7.1.4); (c) the witness statement should normally follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject (para 19.2); and (d) the witness statement should be drafted in the witness’s own language (para 19.1(8)). What if that is a foreign language? Then, the party wishing to rely on it must have it translated; the translator must sign the original statement and must certify that the translation is accurate. In addition, the foreign language witness statement must be filed with the court.  Evidence 219 By PD 32, para 18.1, the statement should be in the witness’s own words as far as practicable and must in any event be drafted in their own language. It should be in the first person and state: (a) the full name of the witness; (b) where they live or, if the statement is made as part of their employment or business, the address at which they work, position in the business and the name of the business; (c) their occupation or description; (d) (if so) that they are a party or an employee of a party; and (e) the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter. See, for example, Appendix D(11) at para 5. PD 32, para 25.1 provides that if there is any defect in the witness statement, the court may refuse to admit it as evidence in the case, and may refuse to allow the costs arising from its preparation. So, how should you respond if your opponent serves a witness statement that fails to meet one or more of the above formalities? The sensible course of action is to raise that concern with the other side and attempt to reach agreement on the issue. Where that is not possible, seek the assistance of the court, by application for a determination on the documents or at a hearing. However, this should be done at a time and in a manner that does not cause disruption to trial preparation or unnecessary costs. Obviously, the more serious the defect, the greater the sanction that should be requested from the court (see Prime London Holdings 11 Ltd v Thurloe Lodge Ltd EWHC 79 (Ch)). In Correia v Williams EWHC 2824 (KB) the claimant was Portuguese. He was not fluent in English. However, his witness statement was written in English rather than in Portuguese, it contained a statement of truth written in English and had apparently been written from notes taken in English by the claimant’s solicitor. The County Court judge held that the witness statement was inadmissible. This was upheld on appeal. The rules about the provision of witness statements by those who are not fluent in English provides an important discipline for litigants and their advisers and are not lightly to be ignored. The judge correctly identified the reasons why to have allowed this witness statement to be admitted would have been grossly unfair. In particular, the Respondent had provided a witness statement which complied with the rules, and, as a result, the Appellant knew the evidence to which he has to respond. By contrast, the Respondent had only the account of events drafted by the Appellant's solicitor, in a language in which the Appellant was not fluent. The difficulties that would have faced the Respondent’s counsel in cross examination on such a witness statement are obvious. As the judge observed, one of the purposes of requiring the service in advance of trial of witness statements are to tie the witness down to one account of events; to have allowed in this statement would have enabled the Appellant to escape that constraint. (per Garnham J at ) A witness’s ‘own language’ includes any language in which the witness is sufficiently fluent to give oral evidence, including under cross-examination, if required. If there are doubts about the proficiency of a witness as to whether they are sufficiently fluent in that language, then this can be tested with a view to considering whether the evidence should be excluded (Afzal v UK Insurance Ltd EWHC 1730 (KB)). 12.3.2 Witness’s own words In the case of Alex Lawrie Factors Ltd v Morgan, Morgan and Turner (1999) The Times, 18 August, the Court of Appeal held that the purpose of a witness statement was for the witness to say, in their own words, what the relevant evidence was. It was not to be used by the lawyer who prepared it as a vehicle for complex legal argument to which the witness would not be readily able to speak if cross-examined on the document. In this case, the second defendant, Mrs Morgan, was seeking to avoid liability to the claimant under a deed of indemnity. She had claimed that the reason why her signature appeared on the deed was due to her former husband’s fraudulent actions and misrepresentations. The claimant applied for summary 220 Civil Litigation judgment (see 10.5.2) and, in her evidence in reply, Mrs Morgan stated that she had had the opportunity of studying the decision of the House of Lords in Barclays Bank plc v O’Brien 1 AC 180 in some detail. She made a number of points in reliance on that decision. The judge said that Mrs Morgan was clearly, from her evidence, an intelligent woman. He concluded that her evidence as to how she came to sign the deed of indemnity was simply not credible and he awarded summary judgment. On the appeal, Mrs Morgan’s counsel sought permission to put in new evidence going to her intelligence. The court allowed this because the situation was susceptible of injustice if the matter proceeded on the basis on which the judge had considered it, which would derive from the judge’s interpretation of the kind of woman Mrs Morgan must be from a perusal of her evidence. The court said that the case was a very good warning of the grave dangers that could occur when lawyers put into witnesses’ mouths a sophisticated legal argument which, in effect, represented the lawyers’ arguments in the case, to which the witnesses themselves would not be able to speak if cross-examined. Having had the benefit of further evidence, the court did not consider that this was a case in which it was appropriate to disregard Mrs Morgan’s evidence as incredible and it allowed the appeal. In the case of Skatteforvaltningen v Solo Capital Partners LLP (In Special Administration) EWHC 1624 (Comm), the judge criticised the content and length of seven factual witness statements and ordered further copies of the statements highlighting which passages were to be relied on as factual evidence, rather than legal argument. 12.3.3 Sources of information and belief (PD 32, para 18.2) Witness statements should not contain matters asserted that are not within the knowledge of the witness nor expressions of belief based on unattributed hearsay (Cumbria Zoo Co Ltd v Zoo Investment Co Ltd EWHC 3379 (Ch)). The statement must indicate which of the statements are based on the witness’s own knowledge and which are matters of information or belief, and the source of the witness’s information and belief. If the source is a person, they should be identified (Masri v Consolidated Contractors International Co SAL EWCA Civ 21). Failure to identify the source may well see the court give little or no weight to the evidence (JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev EWHC 4336 (Ch)). In my judgment, where the maker of a statement is relying on evidence provided by a witness who is an officer of, or employed by, an incorporated body, the requirements of paragraph 18 of Practice Direction 32 to provide the source of evidence is not complied with merely by saying that the source is the entity or officers of the entity. If the source of evidence is a person, as opposed the source being documents, the person or persons must be identified and named. A corporate entity cannot experience events and can only operate through the medium of real persons. It follows that the source of evidence must be a named person or persons. A failure to identify the source in a manner that complies with paragraph 18.2 will mean the court has to consider whether to place any weight on the evidence, especially where it touches on a central issue. (per Chief Master Marsh in Punjab National Bank (International) Ltd v Techtrek India Ltd EWHC 539 (Ch) at ) 12.3.4 Exhibits (PD 32, paras 18.3 and 18.6) Any exhibit used in connection with a witness statement should be verified and identified by the witness and remain separate from the statement. Exhibits should be numbered and, where a witness makes more than one statement in which there are exhibits in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement. 12.3.5 Statement of truth (PD 22, para 2.2) The witness statement must contain a statement of truth in the witness’s own language in the following words:  Evidence 221 I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. The statement of truth must be signed by the witness themselves. Proceedings for contempt of court may be brought against a person who makes a false statement in a witness statement or in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth. Rule 22.3 provides that if the maker of a witness statement fails to verify the witness statement by a statement of truth, the court may direct that it shall not be admissible as evidence. 12.3.6 Template A template to help you draft a witness statement is set out at Appendix B(10). CASE STUDY: WITNESS STATEMENT An example of a witness statement to be used at trial may be found in the case study at Appendix D(11). This witness statement, filed on behalf of the Defendant, would have been exchanged by the Defendant’s solicitors in accordance with the directions order (see 9.6.3.1 and Appendix D(9)). 12.3.7 Key points in drafting a witness statement A witness statement is a written statement signed by the deponent with a statement of truth which contains the evidence which the deponent would be allowed to give orally. Inadmissible material should therefore not be included. Irrelevant material should likewise not be included. A witness statement must comply with the formalities required by PD 32. The function of a witness statement is to set out in writing the evidence-in-chief of the deponent. Accordingly witness statements should, so far as possible, be expressed in the witness’s own words. A witness statement should only include evidence relating to those issues which the party serving the statement wishes that witness to give as evidence-in-chief. Any facts included should be relevant and admissible. It should not deal with other matters merely because they may arise in the course of the trial. A witness statement should be as concise as the circumstances of the case allow without omitting any relevant matters. It should be no longer than is essential to convey the first hand evidence of the witness. It is not the function of a witness statement to engage in matters of argument, expressions of opinion or submissions about the issues, nor to make observations about the evidence of other witnesses. There should not be recitation of the content of documents or commentary on the issues in the claim. A witness statement should be written in: – consecutively numbered paragraphs; – in an orderly and readily comprehensible manner (usually in chronological order). It must be signed by the deponent, and contain a statement that they believe that the facts stated in their witness statement are true. In addition, that statement must confirm the deponent’s understanding that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. 222 Civil Litigation A witness statement must indicate which of the statements made are made from the deponent’s own knowledge and which are made on information and belief, giving the source of the information or basis for the belief. A witness statement must comply with any direction of the court about its length or the issues referred to. 12.4 USE OF WITNESS STATEMENTS AT TRIAL Having served a witness statement on the other side, the witness will usually be called to give oral evidence at trial, unless the court orders otherwise or the party uses the statement as hearsay evidence (see 12.9). As the witness statement will usually stand as the evidence-in-chief, the witness will normally simply be asked to confirm that it is true, and will then be subject to cross-examination by the other side. It is because it is subject to cross-examination that oral evidence from witnesses is considered to be the ‘best’ form of evidence as it has been tested in court. Because a witness statement normally stands as the witness’s evidence-in-chief, the trial judge will have read it before the trial starts, and all witnesses are expected to have re-read their witness statements shortly before they are called to give evidence. 12.4.1 Additional examination-in-chief The witness statement will stand as the evidence-in-chief of the witness (see 14.2.3.2) unless the court orders otherwise. When preparing a witness statement to be used at trial, it is, therefore, essential to ensure that the statement is comprehensive. By r 32.5(3), a witness may amplify their statement or give evidence of matters that have arisen since they served their witness statement, or in response to matters dealt with by another party’s witness, but only if the court gives permission. The court will not do so unless it considers that there is good reason why the evidence was not dealt with by the witness in their witness statement. Pursuant to the overriding objective, a court will usually allow amplification or additional examination-in-chief where admitting that evidence will not cause any other party injustice. For example, additional expense to a party caused by a late, unjustified change of tack by their opponent may see an application under r 32.5(3) refused. 12.4.2 Use by opponent If a party who has served a witness statement does not call the witness or use the statement as hearsay evidence, any other party may use the witness statement as hearsay evidence (r 32.5(5)). The King’s Bench Guide at para 10.63 states that where a party decides not to call a witness whose witness statement has been served to give oral evidence at trial, prompt notice of this decision should be given to all other parties. The party should also indicate whether they propose to put, or seek to put, the witness statement in as hearsay evidence. Where the party who serves the witness statement intends to make no use of it at all at trial, the other party may decide to rely on it as hearsay evidence and should give prompt notice of their intention to do so. 12.5 WITNESS SUMMARIES (r 32.9) Sometimes it will be very difficult to persuade a witness to give a witness statement. As we shall see at 14.1.2, the means exist to compel a witness to come to court, but it is obviously risky to do that if you do not know what the witness is going to say and, of course, as no witness statement will have been exchanged, permission of the court will be necessary anyway before the witness can give oral evidence.  Evidence 223 EXAMPLE Fred is suing his former employers for damages arising out of an accident he suffered at work. Fred believes that his former colleague, Mark, could give evidence about poor safety practices within the firm, but Mark has refused to give a witness statement to Fred’s solicitors as he is worried that if he does he might be dismissed. Rule 32.9 provides that Fred’s solicitors can apply to court without notice for an order to serve a ‘witness summary’. The witness summary must contain: (a) the evidence that would otherwise go in a witness statement; or (b) if the party serving the summary does not know what evidence will be given, the areas about which they propose to question the witness; and (c) the witness’s name and address. An application for permission to rely on a witness summary under r 32.9 raises four issues: (a) whether the applicant has shown an inability to obtain a witness statement; (b) the extent to which the proposed witness is likely to be able to give relevant evidence; (c) whether allowing the summary is compatible with the overriding objective (see 1.1.1); and (d) the adequacy of the summary’s content (see Otuo v Watch Tower Bible and Tract Society of Britain EWHC 346 (QB) and Morley t/a Morley Estates v Royal Bank of Scotland plc EWHC 2865 (Ch)). As to (a), the test that a witness summary will only be permitted when a party is unable to obtain a witness statement has to be applied with a degree of rigour (see Scarlett v Grace EWHC 2307 (QB)). However, the test may nevertheless be met if the court is satisfied that, had such a request been made, it would have been turned down. Unless the court orders otherwise, the summary must be served on the other side by the deadline set for the exchange of witness statements. 12.6 SANCTIONS FOR NOT SERVING A WITNESS STATEMENT (r 32.10) If a party does not serve a witness statement or witness summary within the proper time- limit, the witness cannot give oral evidence unless the court gives permission. What if a party knows that they will not make the deadline to exchange? As soon as that becomes clear, they should contact all other parties and seek an agreement to an extension. They must try to ascertain when the witness’s signed statement is going to be available. Any agreement reached must be recorded in writing, but it must be remembered that the parties cannot alter the key case management dates set in fast track, intermediate track or multi-track cases (see 9.6.2.2 and 9.6.3.5). If no agreement is reached, or if a key case management date will not be met, an immediate application to the court should be made with supporting evidence providing an explanation for the need for the extension (Various Airfinance Leasing Companies v Saudi Arabian Airlines Corporation EWHC 3509 (Comm)). What if a party is ready to exchange within the deadline but their opponent is not? If a good reason is given for an extension it should be agreed, subject to the above comments. But what if there has been no request or application for an extension? If the party complies with the direction and serves the statements on the opponent then that party potentially gains an advantage in that they will see the evidence first and could tailor their own evidence accordingly. The usual practice in these circumstances is for the party to file the statements with the court and explain the situation in a covering letter. Subsequently, an application might be made to strike out the opponent’s case for failing to comply with the court order (see 9.3). 224 Civil Litigation Will the court allow an application to serve a witness statement late or to rely on a witness at trial without having previously served a statement? All will turn on the circumstances of the case and the application of the overriding objective. What if a party discovers a new, favourable witness after witness statements have already been exchanged? At an interim application before trial, will the court’s permission be given to serve the statement in order that the party can rely on the evidence at trial? The court will scrutinise why the discovery was made so late in the day, and only in exceptional cases is it likely that the party will be successful: see Stroh v London Borough of Haringey LTL, 13 July, where the Court of Appeal upheld the refusal of permission as it was clear that the judge had had in mind the overriding objective and he was entitled to conclude that the prejudice to the respondent outweighed the prejudice to the applicant. Note that in Papa Johns (GB) Ltd v Doyley EWHC 2621, it was held that r 32.10 imposes a sanction on the party seeking the court’s permission and so the court should apply r 3.9 (see 9.4.1) when deciding the application. Time limits for service of documents are likely to be strictly enforced. In M A Lloyd & Sons Ltd (t/a KPM Marine) v PPC International Ltd (t/a Professional Powercraft) EWHC 41 (QB), the claimant failed to comply with an order for the sequential exchange of witness statements on a particular issue. The court held that the claimant’s delay was substantial and there had been no good reason for it, and so the claimant was debarred from producing evidence about that issue at trial. For a case concerning late service of witness summaries and relief from sanctions, see Vardy v Rooney EWHC 946 (QB). 12.7 AFFIDAVITS Affidavits are sworn statements of evidence (ie, the maker of the affidavit has to swear before a solicitor (not their own), or other authorised person, that the contents of the affidavit are true). Prior to the CPR 1998 coming into force, affidavits were the usual means of submitting evidence at interim applications. As we have seen, however, evidence at such applications is now given by witness statements, the statement of case itself or the application notice provided it contains a statement of truth. In the great majority of cases, therefore, there is no need to go to the extra expense (an oath fee) of using sworn affidavits as evidence. Indeed, if you do, it is very unlikely that the court would allow you to recoup the extra cost from the other side. On some occasions, however, it is still necessary to use affidavits. The Rules provide that if you are applying for a freezing injunction or search order (see 10.6), the evidence in support of such an application must be by way of affidavit rather than a witness statement. 12.8 OPINION EVIDENCE 12.8.1 Relevant facts personally perceived The general rule is that opinion evidence is not admissible. The function of a witness is to relate the facts to the court so that the court can draw its own conclusions. However, there are some situations in which it may be difficult for a witness to separate fact and opinion. A typical example is the speed at which a vehicle was observed travelling. If a witness gives evidence that a vehicle was being driven at ‘about 60 mph’, that is only the witness’s opinion. Nevertheless, it is difficult to see how else the witness could express what they saw unless they restricted themselves to describing the speed as ‘fast’. Accordingly, whilst the accuracy of the witness’s assessment of the speed might be challenged, it would usually be admissible. Similarly, a witness may be permitted to express a view that ‘John was drunk’. Properly, the witness should relate the physical characteristics they observed which led to that conclusion (eg, slurred speech, glazed eyes, staggering, falling over, breath smelling of alcohol, etc). However, the witness’s opinion, whilst it might be challenged, will be admissible. This is confirmed by s 3(2) of the Civil Evidence Act 1972, which states that  Evidence 225 where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived. 12.8.2 Practical point When a solicitor prepares a witness statement, it is vital that any relevant opinions expressed are based firmly on what the witness personally perceived. For example, assume that you act for a claimant in negligence proceedings against the defendant, Mr X. When you interview a former personal assistant of Mr X, they tell you, ‘Mr X was always very disorganised’. That is a conclusion the witness has drawn. What you want to know is what did the witness see or hear that led them to that conclusion. Was it that Mr X’s office was untidy, with the files on the floor and not in the cabinet? That Mr X did not keep his diary up to date and missed appointments? That Mr X told the witness at least once a week that he had been late for a meeting? 12.8.3 Expert evidence As indicated in s 3(1) of the Civil Evidence Act 1972, the other main exception to the inadmissibility of opinion evidence concerns expert evidence (see 12.13). In Harlow v Aspect Contracts Ltd EWHC 1488 (TCC), the claimants objected to the production of a witness statement which included comments on an expert’s findings and which did not comply with PD 32, para 18.2. The judge in refusing to allow the statement to go into evidence held that the witness was ‘clearly carrying out an exercise of expressing his opinion’. This case clearly demonstrates the need for care when drafting witness statements. 12.9 HEARSAY EVIDENCE Special considerations apply where hearsay evidence is to be used. Before looking at these, it is necessary to understand what is meant by ‘hearsay’. 12.9.1 Definition Hearsay evidence is defined in s 1(2)(a) of the Civil Evidence Act 1995 as ‘a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated’. Hearsay evidence may be an oral or a written statement made outside the courtroom, which is repeated to the court in order to prove the truth of the matter stated out of court. Note that s 13 of the 1995 Act defines a ‘statement’ as ‘any representation of fact or opinion’. The statement that constitutes the hearsay evidence must itself constitute admissible evidence. So any fact must be relevant (see 12.1). Likewise, any opinion must be that of a non- expert based on that person’s perception (see 12.8.1). Equally, the hearsay provisions cannot be used to adduce expert evidence either by way of inclusion in the witness statement or as an exhibit to it (see New Media Distribution Company Sezc Ltd v Kagalovsky EWHC 2742 (Ch)). Therefore, in considering whether evidence is admissible hearsay, the following three questions must be answered in the affirmative: (a) Does the evidence consist of an oral or written statement made outside the courtroom? (b) Is that statement being presented to the court in order to prove that it is true? If the previous statement is being related, for example, to show a person’s state of mind or simply to show that the statement was made, it will not be hearsay. (c) Is the statement an admissible statement of fact or opinion? 226 Civil Litigation EXAMPLE 1 Richard is giving evidence. He says in his evidence, ‘Dave told me that Peter had stolen a car’. Richard is repeating what someone else said outside the courtroom, so the first part of the definition of hearsay is satisfied. But consider why Richard is giving this evidence. If it is as part of a case against Peter where it is relevant to show that Peter did, indeed, steal a car, then it will be hearsay. On the other hand, if Richard is giving evidence in a defamation claim brought by Peter against Dave then it will not be hearsay, as Richard is not giving the evidence to show that Peter stole a car. Indeed, this would be exactly what Peter does not want to show! Richard is relating the evidence simply to show that the statement was made. EXAMPLE 2 Michael booked a holiday with Fancy Tours Ltd. When booking, the agent assured him that the hotel would be quiet and peaceful, close to the beach and with its own swimming pool. However, the hotel was noisy, some distance away from the beach, and did not have a swimming pool. Michael is now suing for misrepresentation and wishes to repeat in evidence the oral statements made to him by the agent. This will be relevant evidence on the issue of liability but it will not be hearsay because it is not being related to show the truth of those statements. It is being related to show the effect that the statements had on his state of mind, namely that he relied on them and was misled by the misrepresentations. EXAMPLE 3 Clive arrives at the scene of an accident shortly after the claimant, Anna, a pedestrian, was knocked over by a motorbike ridden by the defendant, Matthew. The accident takes place in a 30 miles per hour zone. The defendant denies liability, alleging that he was not speeding and that Anna ran out in front of him. Clive’s evidence is, ‘When I arrived at the accident a woman I know only as Liz came up to me and said, “That pedestrian was knocked over by the motorbike that was going at at least 45 miles per hour. It was the bike rider’s fault”’. Assume Clive is called as a witness by Anna. Her solicitor’s attempts to trace Liz fail. Clive can repeat what Liz told him about the pedestrian being knocked over by the motorbike and that in Liz’s opinion the motorbike was travelling at at least 45 miles per hour. That would be admissible evidence if given by Liz in court. It is relevant to the issue of liability and based on what Liz perceived. But Clive cannot repeat Liz’s opinion that the accident was the defendant’s fault. Liz would be a witness of fact in court. A witness of fact cannot give evidence beyond relevant facts and perceptions. This would be inadmissible opinion evidence from Liz. So it cannot be admissible as hearsay evidence for Clive to repeat it. Hearsay evidence may be either first-hand or multiple. EXAMPLE 1 Sara gives evidence of something that she was told by John (in order to prove the truth of John’s statement). Sara’s evidence is first-hand hearsay. EXAMPLE 2 Sara also gives evidence of something that John was told by Michelle (in order to prove the truth of what Michelle said). This evidence is multiple hearsay.  Evidence 227 EXAMPLE 3 Sara keeps a diary. She records what she saw one day. Sara’s diary is used at a trial to prove the truth of its contents. That evidence is first-hand hearsay. EXAMPLE 4 Sara keeps a diary. She records what she was told by John one day. Sara’s diary is used at a trial to prove the truth of what John said. That evidence is multiple hearsay. 12.9.2 Using hearsay evidence 12.9.2.1 Notice requirements Section 1 of the Civil Evidence Act 1995 provides that, in civil proceedings, evidence shall not be excluded on the ground that it is hearsay. Therefore, hearsay evidence is admissible in civil proceedings. Section 2 of the Act provides that a party proposing to bring hearsay evidence must notify any other party of that fact and, on request, give particulars of, or relating to, the evidence. This must be read in conjunction with Part 33 of the CPR 1998 which sets out the rules relating to how hearsay evidence may be used. Rule 33.2 states: (1) Where a party intends to rely on hearsay evidence at trial and either— (a) that evidence is to be given by a witness giving oral evidence; or (b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence; that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court’s order. (2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement— (a) inform the other parties that the witness is not being called to give oral evidence; and (b) give the reason why the witness will not be called. (3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which— (a) identifies the hearsay evidence; (b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and (c) gives the reason why the witness will not be called. (4) The party proposing to rely on the hearsay evidence must— (a) serve the notice no later than the latest date for serving witness statements; and (b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so. 12.9.2.2 Practical points Therefore, if a party serves a witness statement that contains hearsay evidence, but intends to call the person who made the witness statement to give evidence at trial, simply serving the statement on the other party complies with the notice requirements of the Civil Evidence Act 1995. However, if a party does not intend to call a witness but instead intends to rely on the statement itself as hearsay evidence, that party must inform the other side by way of a hearsay notice when they serve the witness statement that they are not calling the witness to give oral evidence and give the reason why, if any, the witness will not be called. 228 Civil Litigation EXAMPLE 1 The witness statement of Mr X is exchanged by the claimant. The statement contains hearsay, namely (a) Mr X repeats what Mrs Y told him outside a courtroom; (b) the claimant will be asking the court to accept that the statement of Mrs Y is true; and (c) her statement is an admissible statement of fact or opinion (see 12.9.1). When exchanging witness statements (including Mr X’s), the claimant does not serve any hearsay notice in respect of Mr X’s evidence and does not serve a witness statement made by Mrs Y on the defendant. From this, the defendant will know that the claimant intends to (a) call Mr X to give oral evidence at trial; and (b) rely on the hearsay evidence of Mrs Y at trial. EXAMPLE 2 The witness statement of Miss Z is exchanged by the defendant. With it, the defendant serves a hearsay notice explaining that Miss Z will not be called to give oral evidence at trial as she is too ill. Those parts of the witness statement that the defendant will be asking the court to accept as true and are admissible facts or opinions expressed by Miss Z (or indeed anyone else to her) will be admissible as hearsay evidence at the trial. Note that by s 2(4), a party’s failure to comply with the notice requirement does not affect the admissibility of the evidence, but it may be taken into account by the court as a matter adversely affecting the weight to be given to the evidence in accordance with s 4 (see 12.9.3.3) and/or when the court makes a costs order at the end of the trial (see 14.3). Notice of intention to rely on hearsay evidence is only required for evidence to be used at a trial. A template to help you draft a hearsay notice is set out at Appendix B(11). 12.9.3 Weight to be attached to hearsay evidence 12.9.3.1 ‘Second best’ evidence Whilst hearsay evidence is admissible, it is important to remember that it is not normally the best evidence of a fact. Out-of-court statements are not made on oath or with any form of affirmation. It is not uncommon for a person to lie, or to make ill-considered statements that are inaccurate. The greater the number of times a statement is repeated, the more likely there is to be an error in the transmission process. Therefore hearsay statements may be less likely to be true or accurate. The memory or power of observation of the maker of a hearsay statement may be defective, but such weaknesses cannot be directly revealed by cross-examination. The trial judge cannot assess the reliability of the statement by observing the witness’s demeanour as the witness is not giving evidence. But are there any safeguards? If X tells the court what Y said, then even though Y cannot be cross-examined as to their means of knowledge and reliability, X can be cross-examined both about X’s own reliability and about their view of Y’s reliability. As to the latter, that depends on how well X knows Y, if at all, and how accurately and honestly X is prepared to give their views about Y. Although this is undoubtedly inferior to cross- examination of Y, Y’s reliability can be tested to some degree. But if X tells the court what Y told them Z said, there is not even this indirect check on Z’s reliability (when neither Y nor Z is called to give evidence). 12.9.3.2 Judicial approach A trial judge will normally start to assess the probative value of any hearsay evidence by answering these questions: (a) What issue, if any, does the hearsay evidence address?  Evidence 229 (b) How important is that issue in the case? (c) What other evidence is available on the same issue? (d) Is the hearsay evidence more probative than any other evidence which the proponent could procure through reasonable efforts? 12.9.3.3 Statutory guidelines Section 4 of the Civil Evidence Act 1995 provides guidelines for the courts to assist them in assessing the weight they should attach to hearsay evidence. It provides that the court is to have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and, in particular, to the following: (a) Whether it would have been reasonable and practicable for the party adducing the evidence to have called the person who made the original statement as a witness. How credible is any reason? Is the maker of the statement dead, or abroad and unwilling or unable to return, or unfit to attend trial, or untraceable, or unlikely to remember the details of their statement? What if the maker of the statement is the opponent or the opponent’s spouse? So where a party chooses to rely on hearsay evidence on a key issue when the maker of the statement is readily available to give oral evidence, you can expect the other side to comment adversely on this in its closing speech, and the trial judge may well decide to give it little or no weight. The inference is that such evidence, if called, would have been unfavourable to the party and so it has relied on hearsay instead. (b) Whether the original statement was made contemporaneously with the events in question. Was the statement made at a time when the facts referred to in it were fresh in the memory of the person making it? Since the accuracy and completeness of recollection decrease rapidly as time passes, an out-of-court statement made soon after an event is likely to be more reliable than the testimony of the maker of the statement given days, weeks, months, or even years later. What is likely to be more reliable: a note a witness makes of a car registration number immediately after the car drives off, or such a note made by the witness the next day? (c) Whether the evidence involves multiple hearsay. For example, Anne says to Brian, ‘I saw an accident in Bow Street today involving a lorry and a red taxi’. The next day Brian says to Chris, ‘Anne said to me yesterday that she saw an accident in Bow Road where a red lorry hit a taxi’. For Chris to repeat in court what Brian informed him Anne had said about the accident would be multiple hearsay. The danger with multiple hearsay is that it may become less and less reliable. Note that Brian tells Chris something slightly different from what Anne told him. Chris’s version could become even less like what Anne originally said. There is always the danger of mishearing, exaggeration, unclear reporting and general inaccuracy through repetition. So, where the statement involves multiple hearsay, the route by which the original statement came to the attention of the person attesting to it should be identified as far as practicable (Re G (Court of Protection: Injunction) EWCA Civ 1312). (d) Whether any person involved had any motive to conceal or misrepresent matters. Was the maker of the statement employed by the party who now relies on it? Did the employee make the statement with a view to pleasing their employer? (e) Whether the original statement was edited, or was made in collaboration with someone else or for a particular purpose. Is a statement made by a person who is trained to make it or record it more or less reliable than a statement made by, or to, someone not so trained? (f ) Whether the circumstances suggest an attempt to prevent proper evaluation of the weight of the evidence. Was notice given of the intention to adduce the hearsay evidence and, if so, was that notice given sufficiently in advance of the trial to permit the party 230 Civil Litigation affected by it a fair opportunity to respond to it? If notice was given, did the other side object? Note that by s 2(4) of the 1995 Act, this guideline includes any failure to comply with the notice requirements (see 12.9.2) 12.9.4 Right of the opposing party to cross-examine the person who originally made the statement Section 3 of the Civil Evidence Act 1995 provides that where a party adduces hearsay evidence from a person whom they do not call as a witness, any other party may, with the permission of the court, call that person as a witness and cross-examine them. An application for such permission must be made not later than 14 days after service of the hearsay notice (CPR 1998, r 33.4). What is the scope of this provision? It applies to any hearsay evidence upon which a party relies, whether that hearsay statement is contained in a witness statement made by the author of the hearsay statement or in some other witness statement or expert report (see Brown v Mujibal 4 WLUK 42). So, if a party to an action chooses not to give oral evidence and rely on hearsay, can the other party use this provision to compel the opponent to attend the trial and be cross-examined? In Brown, this was answered in the affirmative. But that decision was distinguished and doubted in G (a protected party by his litigation friend SX) v Hassan 6 WLUK 441. The decision in Brown was distinguishable on its facts because the claimant's capacity had been in dispute in that case. That was an important distinction with the instant case where the experts agreed that the claimant lacked capacity. Furthermore, the legal analysis in Brown had been incomplete in that there had been no consideration of the question of the compellability of witnesses. If the defendant was correct, then one party in civil litigation could become a compellable witness at the suit of the other party in the litigation. That proposition could not be accepted as a matter of law, nor was there any binding authority for it. Similarly, the judge in Brown had not considered the Civil Evidence Act 1995, s 4 (see 12.9.3.3) on the weight to be given to hearsay evidence. That section adequately protected a defendant in that the trial judge could attach little or no weight to such evidence to the claimant’s detriment. 12.9.5 Competence (Civil Evidence Act 1995, s 5) Hearsay evidence is not admissible if the original statement was made by a person who was not competent as a witness because of their mental or physical infirmity or lack of understanding. 12.9.6 Credibility (Civil Evidence Act 1995, s 5) Where hearsay evidence is adduced and the person who made the original statement is not called as a witness, evidence is still admissible to attack or support their credibility, or to show that they have made another, inconsistent statement. The party wishing to call such evidence must give notice to the other party not later than 14 days after service of the hearsay evidence (CPR 1998, r 33.5). Although notice may have been given under s 5, how will the party actually adduce the discrediting evidence (such as an allegation of bias, previous convictions or a previous inconsistent statement) at trial? It is now too late to include such allegations in any witness statements as they have already been served pursuant to the directions order. The opponent’s agreement, or otherwise the court’s permission, should be sought to rely on the evidence. An application to the court should be made at any pre-trial review or trial. If done at a pre-trial review then permission should be requested to serve a supplemental witness statement dealing with the evidence.  Evidence 231 12.9.7 Previous inconsistent statements (Civil Evidence Act 1995, s 6) The effect of this provision is that, where a party calls a witness to give evidence at the trial, the opposing party may cross-examine the witness about a previous inconsistent statement provided that they have complied with the requirements of the Civil Evidence Act 1995 concerning the use of hearsay evidence. For example, in Fifield v Denton Hall Legal Services EWCA Civ 169, the claimant’s doctor, during a consultation, wrote down certain facts that the claimant told him about how she sustained her injuries. The defendants contended that the facts in the doctor’s record were inconsistent with the facts advanced by the claimant in her own evidence. So in the circumstances the doctor’s record was hearsay evidence and notice should have been given by the defendants to the claimant. If the court concludes that the inconsistent statement was made, it is unclear whether the earlier inconsistent statement itself can be treated as evidence of its contents, or if it only affects the credibility of the witness. This provision does not prevent a person’s witness statement that has been exchanged in accordance with a case management order from being treated as their evidence-in-chief. Indeed, the judge at the trial can, and usually will, order that a witness statement which was served before the trial shall stand as the evidence-in-chief of that witness. The witness will, of course, be present at the trial, and will be subject to cross-examination. In these circumstances, their witness statement is not treated as hearsay evidence. 12.9.8 Statements contained in documents (Civil Evidence Act 1995, s 8) This provision provides that where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved (a) by the production of that document, or (b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve. Whilst it is immaterial for this purpose how many removes there are between a copy and the original, how much weight should a court give to secondary evidence when the original document is not produced? In Masquerade Music Ltd v Springsteen EWCA Civ 563, Parker LJ stated at : In every case where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence. Where the party seeking to adduce the secondary evidence could readily produce the document, it may be expected that (absent some special circumstances) the court will decline to admit the secondary evidence on the ground that it is worthless. At the other extreme, where the party seeking to adduce the secondary evidence genuinely cannot produce the document, it may be expected that (absent some special circumstances) the court will admit the secondary evidence and attach such weight to it as it considers appropriate in all the circumstances. In cases falling between those two extremes, it is for the court to make a judgment as to whether in all the circumstances any weight should be attached to the secondary evidence. Thus, the ‘admissibility’ of secondary evidence of the contents of documents is, in my judgment, entirely dependent upon whether or not any weight is to be attached to that evidence. And whether or not any weight is to be attached to such secondary evidence is a matter for the court to decide, taking into account all the circumstances of the particular case. Recognising that the factors relevant to the question of the admissibility or weight of secondary evidence will vary from case to case and that the list of relevant factors will not be a closed one, Smith J in Promontoria (Oak) Ltd v Emanuel EWHC 104 (Ch) at considered that the following are factors of particular importance that a judge needs to bear in mind: (1) The probative difference between the ‘primary’ and the ‘secondary’ evidence. The probative difference between primary and secondary evidence (or ‘best’ and ‘second best’ evidence) varies from case to case: (a) Were the evidence in question to be an electronic document, it is meaningless to seek to differentiate between the identical saved document on different persons’ computers. In 232 Civil Litigation Kajala v Noble (1982) 75 Cr App R 15 the Divisional Court held that justices had been entitled to rely on a copy of a video recording made from an original shown on BBC television news bulletins. The original was in the possession of the BBC and the copy was produced and identified by an employee of that organisation. The justices had been satisfied that it was an authentic copy. They accepted that the BBC policy of refusing to allow the original to leave their premises was reasonable and that the film crew who took the original was overseas. (b) Equally, there will be many cases were a photocopy will be as good, or nearly as good, as the original. (c) On the other hand, there will be cases where primary evidence will be clearly and distinctly preferable to the secondary evidence. Were a court to be presented with a choice between the written agreement between A and B, and B’s effort to reconstruct the terms of that agreements some months after signing it, it is clear that (all other things being equal) the court would wish to see the written agreement, and that B’s reconstruction (no matter how careful and well-intentioned) would be a poor substitute for the primary evidence, namely the written agreement itself. (2) The point at issue between the parties. The extent to which a court will wish to have primary as opposed to secondary evidence before it will be affected by the point at issue between the parties: (a) Thus, for example, if the allegation is that a document has been forged, the court will wish to have the original before it in order to explore and resolve this question. If, on the other hand, the point at issue between the parties is the construction of a particular contractual provision, it is difficult to see why a court needs to see the original contract, as opposed to a photocopy or image of the original. (b) It is worth noting that this sort of question may arise independently of the ‘best evidence’ rule. Suppose the dispute between the parties is that emails between certain persons have been tampered with. A court would not wish to see the ‘original’ emails – it is likely that no such thing could even be defined – but rather would wish to have evidence going to the integrity of the IT infrastructure whereby the emails were sent, in order to satisfy itself as to whether the products of that system, the emails, were or were not capable of being altered. (3) The reason for a party’s inability to produce the original. The point has been made in most of the cases articulating the ‘best evidence’ rule, that a court's reaction to the non-production of primary evidence is significantly informed by the reason for the non-production of that evidence. If there is a good reason why the document cannot be produced – for instance, months before litigation commenced, the office storing a party’s original documents burned down – then the extent to which the court will be inclined to draw adverse inferences from the failure to produce the original will be limited. If, on the other hand, the original is readily available, and the party who holds it can provide no coherent explanation for the failure to produce the original, adverse inferences of some sort are likely to be drawn. Why, the court will ask itself, is a party producing secondary evidence when better evidence – the primary evidence – is readily available? The natural inference, in such a case, is that the primary evidence does not tell the same story as the secondary evidence, and that the primary evidence is not being adduced for that reason. (4) The procedural history. A trial is a culmination of a process. That process involves identifying and framing the issues between the parties, and then ensuring that proper disclosure of documentary evidence appropriate to the resolution of those issues takes place. Generally speaking, the issue of a party’s failure to produce an original ought to be raised and resolved well before trial. The English courts have established procedures, taking place well before trial, to flush out the points parties are taking in relation to documents. Thus, for instance, the fact that a party is contending that a certain document is a forgery will not (absent wholly exceptional circumstances) be raised for the first time at the trial itself. There will have been anterior debate about the precise allegation being made, and the mechanism (for instance, the use of handwriting experts) whereby the allegation of forgery is to be resolved. When considering the best evidence rule, a trial judge will, plainly, take into account the interlocutory steps that have, or have not, been taken by the parties in bringing their dispute to trial.  Evidence 233 12.10 USE OF PLANS, PHOTOGRAPHS AND MODELS AS EVIDENCE (r 33.6) Where evidence such as a plan, photograph, model or the records of a business or public authority is to be given in evidence and it is not: (a) contained in a witness statement, affidavit, or expert’s report; (b) to be given orally at the trial; or (c) the subject of a hearsay notice; the evidence will not be admissible unless the party intending to use it has disclosed their intention to use such evidence within the deadline for serving witness statements. They must disclose their intention at least 21 days before the hearing, if: (a) there are not to be witness statements; or (b) they intend to use the evidence solely to disprove an allegation made in a witness statement. If the evidence forms part of an expert’s report, they must disclose their intention when they serve their expert’s report. Where a party has given notice of their intention to put in the evidence, they must give every other party an opportunity to inspect it and to agree to its admission without further proof. 12.11 NOTICE TO ADMIT FACTS (r 32.18) In order to try to avoid the expense of proving a particular fact at trial, a party may serve on another party a notice requiring that party to admit certain facts or a certain part of their case, as specified in the notice. Form N266 should be used. A copy is set out at Appendix A(6). Such a notice must be served no later than 21 days before the trial. If the party upon whom the notice is served refuses to admit the relevant fact(s), the other party will still be required to prove the fact(s) at trial. Where, however, they do so, the court may take this into account when considering the issue of costs. Effectively, this means that the party who served the notice will usually recover the cost of proving the facts in question (even if they lose the case). 12.12 NOTICE TO ADMIT OR PROVE DOCUMENTS (r 32.19) A party is deemed to admit that any document disclosed in a list of documents served under Part 31 (see Chapter 11) is genuine unless they serve notice that they want the document to be proved at trial. A notice to prove a document must be served by the later of the following: (a) the latest date for serving witness statements; or (b) within seven days of disclosure of the document. Late service of the notice will require the court to consider relief from a sanction (see 9.4 and OCM Maritime Nile LLC v Courage Shipping Company 1 WLUK 100). Improper tactical use of the notice procedure by a party may see the costs of the authenticity of documents exercise payable by that party on the indemnity ‘penalty’ basis (see Duke of Sussex v MGN Ltd EWHC 274 (Ch) and 14.3.3.3). 12.13 EXPERT EVIDENCE (PART 35) As we saw at 3.4, in many cases a party may wish to instruct an expert and rely upon expert evidence. However, parties do not have an unfettered right to use expert evidence and, as part of its case management powers, the court will restrict expert evidence to that which is 234 Civil Litigation reasonably required to resolve the proceedings, bearing in mind the overriding objective and particularly the issue of proportionality. Judicial guidance on applying the test in r 35.1 was provided in British Airways v Spencer EWHC 2477 (Ch). In that case, Warren J held that the following questions should be asked by a court when determining whether expert evidence should be permitted: (a) Is it necessary for there to be expert evidence before the issue can be resolved? If it is necessary, rather than merely helpful, then it must be admitted. (b) If the evidence is not necessary then would it be of assistance to the court in resolving that issue? If it would be of assistance, but not necessary, then the court would be able to determine the issue without it. (c) Since, under (b) above, the court will be able to resolve the issue without the evidence, the third question is whether, in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings. By s 3(1) of the Civil Evidence Act 1972, subject to the rules of court, ‘where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.’ See the Guidance for the Instruction of Experts (Appendix A(21)) for a detailed consideration of the duties of experts, their appointment, etc. Part 35 of the CPR governs the use of experts by parties only during court proceedings. This is because an expert is defined by r 35.2 as a person who has been instructed to give or prepare expert evidence for the purpose of the proceedings. 12.13.1 The duty of an expert Although in many cases an expert is instructed by one particular party, r 35.3 makes it clear that the duty of an expert is to help the court on the matters within their expertise, and this duty overrides any obligation to the person from whom they have received instructions or by whom they are paid. Practice Direction 35 includes the following. 2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate. 2.3 Experts should consider all material facts, including those which might detract from their opinions. 2.4 Experts should make it clear – (a) when a question or issue falls outside their expertise; and (b) when they are not able to reach a definite opinion, for example because they have insufficient information. The starting point in both CPR Pt 35 and the accompanying Practice Direction is therefore that the expert witness must give evidence on matters which fall ‘within their expertise’. That may of course require the expert to do some further research to enhance their existing knowledge in the field, so as to be able to assist the court with the specific issues in the case. An expert may also wish to do background reading in relation to a related field in which they do not profess specific expertise, so as to be able to understand the context of the questions which they are asked which do fall within their field of expertise, and thereby to give useful answers to those questions. What the expert should not, however, do is to give evidence on the basis that they have sought to read in and educate themselves in the relevant field for the purposes of the case in question. A person does not become an expert by virtue of having acquired knowledge in the course of the case itself. Nor should an expert give evidence on a subject which falls outside their expertise, but which they consider they understand ‘well enough’ to express a view on the matter. An expert is not instructed for court  Evidence 235 proceedings on the basis that they believe that they have ‘sufficient’ grasp of the matter to express a view, or are able to teach themselves what they need to know in the course of preparing their evidence. They are instructed on the basis that they are a genuine expert in the relevant field, whose opinions may be relied upon and given weight by the court. (per Bacon J in Sycurio Ltd ( formerly Semafone Ltd) v PCI- Pal PLC EWHC 2361 (Pat) at –) If the expert is unsure of the nature of these obligations, they may file a request for directions from the court. Experts should, therefore, be completely objective and unbiased in the way in which they provide their opinion for the benefit of the court (see Stevens v Gullis BLR 394). Likewise, it is not for an expert to comment on issues concerning the credibility of a party or the reliability of a party’s evidence (see Radia v Marks EWHC 145 (QB)). We saw at 3.4.2 that payment of the expert’s fee on a conditional or contingency fee basis might call into question the independence and impartiality of the expert. In Gardiner and Theobald LLP v Jackson (Valuation Officer) UKUT 253 (LC), a case concerning rating valuations, the expert was not paid on a conditional fee basis but their firm was entitled to a ‘success-related fee’ if the firm secured a reduction in liability for rates on the properties. This gave rise to concerns about independence, as in the judge’s view it gave the expert a ‘direct financial interest’ in the assessment of rateable value. An expert is not disqualified by the fact of being employed by one of the parties, although the court will need to be satisfied that the expert was sufficiently aware of their responsibilities to the court (Field v Leeds City Council 1 EGLR 54). Given the risk of the appearance of bias, parties will generally prefer to instruct an expert who is independent. See also Proton Energy Group SA v Orlen Lietuva EWHC 2872 (Comm). An expert who behaves improperly is likely to be reported to their governing body by the trial judge at the end of the hearing, as suggested in Pearce v Ove Arup Partnership LTL, 8 November and Meadow v General Medical Council EWCA Civ 1390. If an expert’s behaviour demonstrates a flagrant or reckless disregard of their duty to the court and thereby wastes the costs of the opposing party, the expert may be ordered to contribute towards payment of those costs (see Robinson v Liverpool University Hospitals NHS Trust EWHC 21 (KB)). An expert who deliberately or recklessly makes a false statement in their report is likely receive a custodial sentence for being in contempt of court (Liverpool Victoria Insurance Company Ltd v Zafar EWCA Civ 39). Note also that a party may sue their own expert in negligence: see Jones v Kaney UKSC 13. 12.13.2 The court’s power to restrict expert evidence Rule 35.1 provides that expert evidence must be restricted to that which is reasonably required to resolve the proceedings, and r 35.4 provides that no party may call an expert or put in evidence an expert’s report without the court’s permission. Permission is usually granted at the directions stage, and the party applying for permission must identify both the field in which they wish to rely on expert evidence and, where practicable, the name of the expert in that field on whose evidence they wish to rely, the issues the expert evidence will address and an estimate of the costs of the proposed expert evidence. As we saw in Chapter 9, this information should normally be provided in the directions questionnaire. The options available to the court in giving directions on expert evidence include: (a) directing that no expert evidence is to be adduced at all, or no expert evidence of a particular type or relating to a particular issue; (b) limiting the number of expert witnesses which each party may call, either generally or in a given speciality; (c) directing that evidence is to be given by one or more experts chosen by agreement between the parties or, where they cannot agree, chosen by such other manner as the court may direct; 236 Civil Litigation (d) directing that some or all of the experts from like disciplines shall give their evidence concurrently (see PD 35, para 11). The court will also decide whether it is necessary for experts to give oral evidence at trial. This is probably going to be the case in intermediate and multi-track proceedings, but in fast track proceedings the normal position is that expert evidence will be given in the form of a written report or reports rather than by way of oral evidence (see 9.6.2.5). The court also has the power to limit the amount of the expert’s fees and expenses that the party who wishes to rely on the expert may recover from any other party. 12.13.3 Instructions to an expert witness You would normally expect the instructions from a solicitor to an expert witness to be privileged from inspection by other parties (see 11.11). However, r 35.10(4) states: The instructions referred to in paragraph (3) [the substance of all material instructions, written or oral, on which the report is based] shall not be privileged against disclosure but the court will not, in relation to those instructions— (a) order disclosure of any specific document; or (b) permit any questioning in court other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete. As we shall see at 12.13.5, the report itself must contain the substance of all material instructions received. So has legal professional privilege in relation to instructions to an expert gone? The answer appears to be that it has not. Rule 35.10(4) is qualified by PD 35, para 5, which provides that such cross-examination will be permitted only where it is in the ‘interests of justice’. Arguably the instructions remain privileged from inspection unless and until the court makes an order under the Rule. Such an order will be made only if there are reasonable grounds for believing that the expert’s statement of instructions is inaccurate or incomplete: Lucas v Barking, Havering and Redbridge Hospitals NHS Trust EWCA Civ 1102. Of course, a party can always waive privilege if they wish to do so. Indeed, there are many occasions when solicitors might use a standard format for instructions to an expert, especially where recommended by a pre-action protocol. In such a case there should be no objection to the expert exhibiting those to their report. However, there is no question of confidential information concerning the merits of the case having to be disclosed. The court will not readily entertain any applications for disclosure or cross-examination in this context. After reports have been exchanged it should be routine for a party to send a copy of the other side’s report to their own expert for comment. Obviously one point that can be looked for is whether any report is based on inaccurate or incomplete instructions. If there are doubts the matter should be raised in correspondence and/or an interim application made for directions concerning the ‘suspicious’ report. 12.13.4 Form of expert evidence Expert evidence is to be given in a written report unless the court directs otherwise, and, if the party wishes to rely on the expert evidence at trial, the report must be disclosed to the other party in accordance with the directions given by the court. The usual order is for simultaneous mutual exchange on or before a set date. When first obtained, an expert’s report that has been prepared for the sole or dominant purpose of the litigation is a privileged document. A copy must be given to the other party only if the party who commissioned it wishes to rely on it at trial. If they decide not to rely on the report (perhaps because it is unfavourable), they do not have to allow the other side to inspect it. It is, however, disclosable in part 2 of the list of documents. See further Chapter 11.  Evidence 237 A party cannot use a witness statement (see 12.3) to adduce evidence which that witness could not give orally (JD Wetherspoon plc v Harris (Practice Note) EWHC 1088 (Ch)) and therefore cannot include evidence that could only be given by way of an expert (New Media Distribution Company Sezc Ltd v Kagalovsky EWHC 2742 (Ch): It is not right for a factual statement … to be used to adduce expert, when there are clear procedural rules of this court that no party may call an expert or put in evidence an expert’s report without the court’s permission. It is not right for these provisions in CPR 35 to be circumvented simply by attaching the expert statements to a statement of fact’. (per Smith J at ) The position was confirmed in R (on the application of Banks Renewables Ltd) v Secretary of State for Business, Energy & Industrial Strategy 2 WLUK 99. Where a party does not have permission to rely on an expert’s report, neither the party nor any of its witnesses should exhibit the report to their witness statement. It is important to ensure that the CPR 1998 and the refusal of permission to adduce an expert’s report are not circumvented by it being exhibited to a witness statement. 12.13.5 Contents of the report Rule 35.10 and PD 35, paras 3.1 and 3.2 give the following detailed instructions on the contents of an expert’s report: 3.1 An expert’s report should be addressed to the court and not to the party from whom the expert has received his instructions. 3.2 An expert’s report must: (1) give details of the expert’s qualifications; (2) give details of any literature or other material which the expert has relied on in making the report; (3) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based; (4) make clear which of the facts stated in the report are within the expert’s own knowledge; (5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision; (6) where there is a range of opinion on the matters dealt with in the report— (a) summarise the range of opinion, and (b) give reasons for the expert’s own opinion; (7) contain a summary of the conclusions reached; (8) if the expert is not able to give his opinion without qualification, state the qualification; and (9) contain a statement that the expert: (a) understands their duty to the court, and has complied with that duty; and (b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014. The report must also be verified by a statement of truth that states: I confirm that I have made clear which facts and m