Evidence — witness, expert, hearsay

DR.08 — Evidence: Witness, Expert, Hearsay

Overriding principle. The court controls evidence under CPR Part 32. It may exclude otherwise admissible evidence (r.32.1) and limit cross-examination. Evidence at trial is normally given orally; at interim hearings, in writing (witness statements/witness summaries).

Witness evidence

• Statements stand as evidence-in-chief (r.32.5). The witness is then cross-examined and re-examined. A statement must contain a statement of truth (r.22.1); a false statement made without honest belief risks contempt proceedings (r.32.14).
• PD 57AC (Business and Property Courts) tightens trial witness statements: only matters of fact the witness can prove from their own knowledge, in their own words; a confirmation of compliance and a certificate from the legal rep are required.
• A witness summary is used where a statement cannot be obtained (r.32.9). Serve statements per directions; late/non-service means the witness may not be called without the court's permission (r.32.10).

Expert evidence

• Needs the court's permission (r.35.4) and is restricted to what is reasonably required to resolve proceedings (r.35.1).
• The expert's overriding duty is to the court, not the instructing party (r.35.3); this duty overrides any obligation to the client.
• Formalities: a report must comply with PD 35 and contain a statement of truth in the prescribed form. Tools include written questions (r.35.6, within 28 days, for clarification only), a single joint expert (r.35.7–8), and a discussion between experts (r.35.12) producing a joint statement of agreement/disagreement. The content of that discussion is not referred to at trial unless the parties agree (r.35.12(4)), and any agreement the experts reach does not bind the parties unless they expressly agree to be bound (r.35.12(5)).

Hearsay (civil)

• Hearsay is admissible in civil proceedings — Civil Evidence Act 1995 s.1 abolished the rule against it. Weight is assessed under s.4 (e.g. could the maker have been called; contemporaneity; motive to conceal).
• Notice (s.2 / r.33.2): a party relying on hearsay must give notice. Failure does not make it inadmissible but affects weight (and may attract costs).
• The opponent may apply to cross-examine the maker of a hearsay statement (s.3 / r.33.4).

Common traps

• Hearsay is admissible — but you still need notice; absence of notice goes to weight, not admissibility.
• Expert evidence requires permission first; the expert's duty is to the court.
• Distinguish a witness statement (own knowledge) from an expert report (opinion). Lay witnesses generally cannot give opinion.
• Single joint expert ≠ each side's own expert — used where proportionate.
• The r.35.12 experts' discussion is not "without prejudice": its content is simply not referred to at trial unless the parties agree (r.35.12(4)).