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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.

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Bvc civil procedure

BVC Civil Procedure

Evidence In Civil Proceedings Part 1


Burden and standard of proof
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
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 statements1
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 statements2
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
Hearsay evidence

  • s2 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 – s4 CEA


Witness summonses
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 14th May 1999

  • Summons to produce documents - 34.2(5).


Other matters
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 (N268) (32.19)

  • Interesting case – Jones v University of Warwick [2003] 1 WLR 954