Evidence — SQE1 FLK1 Dispute Resolution

At the trial of a personal injury claim, your witness says this. I did not see the collision myself. But a colleague told me straight afterwards that they saw the delivery driver reverse into the claimant. The colleague has not been called, still works at the same depot, lives nearby, and nobody has explained the absence. The other side objects and asks the judge to exclude the answer. Should it be excluded?

No. That is textbook hearsay, and in a civil court it is not excluded for being hearsay. It comes in. Whether it is worth anything is a completely different question, and the answer there is probably not much. This is Evidence, and that gap between admissible and worth having runs through the whole topic. Keep that depot in mind.

Here is the route. Relevance and admissibility first, the two gates every piece of evidence has to pass. Then hearsay, where civil practice parts company with criminal. Then burden and standard of proof. Then expert evidence, which is the most regulated part of the topic. Then witness statements. Then affidavits. And last, how to compel a witness who will not come.

Start with the shape of the system, because it explains everything that follows. Criminal evidence has strict exclusionary rules built to protect defendants. Civil evidence does not. Civil proceedings are trying to get to the truth efficiently, and the guiding principle is fairness, not technical exclusion. So civil judges rarely throw relevant material out. They take it in and decide what it is worth.

Two gates, then. The first is relevance. Evidence is relevant if it tends to prove or disprove a fact that matters in the case. Does the email prove the contract existed? Does the photograph show the damage? If it does not address an issue in dispute, it is irrelevant and inadmissible, however interesting it is. CPR 32.1 lets the court allow evidence on any matter it considers relevant.

The second gate is admissibility. Is the evidence reliable? Was it obtained properly? Is it privileged? The court also has a discretion to exclude where probative value is outweighed by prejudice, or where the evidence would simply waste time. But that is rare. Civil judges are trusted to give material the weight it deserves rather than shut it out.

Hearsay next, and back to our depot. Hearsay is evidence of what somebody else said, rather than what you saw or heard yourself. John says Mary told me the defendant was drunk. John did not see the defendant drunk. He is reporting Mary. The worry has always been reliability. Mary is not in the box, so nobody can test her perception, her memory or her honesty.

So what did Parliament do about it? Section 1 of the Civil Evidence Act 1995 says that in civil proceedings evidence shall not be excluded on the ground that it is hearsay. Not restricted. Not conditional. Abolished. That is the single most important sentence in this topic, and it is why the objection at our depot trial fails.

Notice still matters, though. If you want to rely on hearsay, you give notice under CPR Part 33. Where the hearsay sits in a witness statement you have served, serving that statement is itself the notice. You must also tell the other side that the witness is not being called, and why. But here is the trap. Failure to give notice does not affect admissibility. The Act says so in section 2(4).

What it does instead is hurt you in weight and in costs. And weight is where the real contest is. Section 4 gives the court its factors. Would it have been reasonable and practicable to produce the maker of the statement? Was the statement made contemporaneously? Does it involve multiple hearsay? Did the maker have personal knowledge? Was there a motive to lie?

Run our colleague through that. Same depot, lives nearby, perfectly capable of coming to court, and no explanation offered. It would plainly have been reasonable and practicable to call them. So the account comes in, and it is likely to carry very little weight. And the other side has one more move. Under CPR 33.4 they can apply for permission to call the maker of the statement for cross-examination.

Burden and standard now, and keep the two apart. The burden of proof says who has to prove what. The general rule is that he who asserts must prove. Claiming breach of contract? You prove the breach. Defending? You prove nothing, unless you are running a positive defence like payment, and then you prove that. A counterclaim is the same. The defendant proves it.

Within that, two different burdens. The legal burden, sometimes called the persuasive burden, is the obligation to prove a fact on the balance of probabilities. It stays with the same party from start to finish. The evidential burden is the obligation to put up enough evidence on a point to justify a finding in your favour. Produce nothing on a point and you lose that point.

Which one shifts? The evidential burden can. Once the claimant produces evidence of breach, the defendant may need to produce something to rebut it. That is not the defendant proving innocence. The legal burden rarely shifts at all. And the standard is the balance of probabilities. More likely than not. If you are 51% sure, you have met it. The classic authority is Miller v Minister of Pensions, from 1947.

Expert evidence, and this is the most regulated corner of the topic. Expert evidence is opinion evidence on technical matters beyond ordinary knowledge. Medical diagnosis, engineering standards, valuation. First rule: you need permission. Under CPR 35.4 no party may call an expert, or put an expert report in evidence, without the court's permission. You normally ask for it at the case management conference.

Second rule, and it is the one that gets tested. CPR 35.3. An expert's duty is to help the court on matters within their expertise, and that duty overrides any obligation to the client or to whoever is paying. Experts are not advocates. They are assistants to the court. Give them everything, not just the helpful documents, and let them reach their own conclusions.

And the duty has teeth in both directions. A clinical psychologist was instructed as an expert, signed a joint statement making concessions that damaged her own client's case, and was then sued by that client for negligence. The Supreme Court abolished the immunity experts used to enjoy. An expert owes a duty of care to the client who instructs them and can be sued. That is Jones v Kaney, from 2011.

Third, the court would often rather have one expert than two. Under CPR 35.7, where two or more parties want expert evidence on the same issue, the court may direct a single joint expert. The parties can agree who it is, or the court picks. Each side may put questions. It saves cost and it avoids a battle of the experts on a question capable of one answer.

Where there are two experts, the court will usually direct them to meet and discuss their differences. They then produce a joint statement setting out what they agree, what they do not, and why. Those discussions are without prejudice. And the report itself has a shopping list under CPR 35.10. Qualifications, the facts relied on, the documents considered, the opinions and their basis. Any tests carried out, a statement of truth, and confirmation of the duty to the court.

Witness statements. Two jobs: they tell the other side what your evidence is, so there are no surprises, and they give the witness a record to work from. At trial the statement stands as the witness's evidence-in-chief. PD 32 sets the content. Name and role, a statement that the evidence is within personal knowledge, the facts, any exhibited documents, and a statement of truth.

What goes in? Facts the witness personally saw, heard or did. Conversations they took part in or overheard. Documents they created or received. Events they witnessed, with dates. What stays out? Opinions and argument, unless they are an expert. Legal conclusions. Speculation. Anything outside their personal knowledge. And what somebody else told them, because that is hearsay.

Every statement ends with a statement of truth: I believe that the facts stated in this witness statement are true. The witness signs and dates it. Signing a false one can lead to contempt proceedings, so make sure they understand that. And once a statement is served, changing it needs permission. Get it right the first time.

One extra layer if you are in the Business and Property Courts. PD 57AC, in force from 6 April 2021, governs trial witness statements there on top of Part 32. It confines the statement to facts the witness can prove from personal knowledge, requires the documents they referred to to be identified, and bars argument and commentary. It needs a confirmation of compliance from the witness and a certificate from the legal representative. Get it wrong and the court may strike the statement out or order a redraft.

Affidavits. An affidavit is a formal written statement of evidence, sworn or affirmed before an authorised person such as a solicitor or a commissioner for oaths. It ends with a jurat rather than a statement of truth. For trial evidence, witness statements have almost entirely replaced it. But affidavits survive for interim applications like injunctions, for contempt proceedings, and for applications made without notice.

Last, the witness who will not come. You cannot force somebody to testify, but you can ask the court to require it. Under CPR 34.2 a witness summons may require a person to attend court to give evidence, or to produce documents. It is issued by the court, served on the witness, and must specify the time and place and whether documents are wanted.

CPR 34.3 covers the documents-only version, which is useful when a non-party holds relevant material and will not hand it over. That person does not have to attend, just produce. Ignore a summons and you are in contempt, which can mean a fine or imprisonment. And you may need to offer conduct money, a sum covering the witness's reasonable expenses and lost earnings.

A word on how SQE1 tests this. You will not be asked to recall a case name or a rule number. You get a scenario, five answers, and one instruction: pick the best. This topic is mostly rules of procedure, so learn what each rule does, not where it sits.

If you keep only three pegs. Section 1 of the Civil Evidence Act 1995, which abolished the hearsay exclusion in civil proceedings. CPR 35.3, the expert's duty to the court that overrides the duty to whoever pays. And Jones v Kaney, where the expert who signed a damaging joint statement lost the immunity that would once have protected her.

Four traps. One: the hearsay notice is not a gate. Evidence served without a hearsay notice is not excluded. Hearsay is admissible whatever happens. The default costs you weight and costs, not admissibility. That distinction is the whole of this area.

Two: opinion belongs to the expert. A lay witness statement that says the defendant must have been speeding, because the damage was so extensive, is argument dressed as evidence. Take it out. What the witness saw stays in.

Three: no expert evidence without the court's permission. Instructing an expert is not the same as being allowed to call one. Ask at the case management conference, or the report you have paid for never reaches the judge.

Four: do not reach for a witness summons routinely. Ask whether the evidence is essential and whether the witness will be hostile, because a hostile witness can do real damage under cross-examination. And you cannot summons someone simply to harass them. There has to be a genuine evidential purpose.

Quick check. A consultant is instructed as an expert by the solicitor for a claimant in a clinical negligence claim about a missed fracture. Having reviewed the records, the consultant concludes that the complications would probably have followed even with timely diagnosis, so causation is not made out. On a conference call the solicitor says that strong evidence on causation is what the expert is being paid for, and asks the consultant to reconsider.

What is the proper course for the consultant? Three candidates. One: give the honest opinion, because the duty to the court overrides the duty to the client. Two: give the opinion the solicitor asks for, provided the reasoning is honestly expressed. Three: give both views without preferring either, and leave the choice to the trial judge. Pause here if you want a moment.

The answer is one. Under CPR 35.3 the expert's duty to help the court overrides any obligation to the person instructing or paying them. An expert is not the party's advocate. The consultant reports the opinion actually held, that causation is not made out, and says so plainly. If the pressure continues, an expert may file a written request for directions under CPR 35.14.

Why the others fail. Option two misses the point: honestly expressing borrowed reasoning does not make the opinion the expert's own. The duty is to give the opinion actually held. Option three fails because an expert must reach a reasoned conclusion, not decline to reach one.

Five things to take away. One: hearsay is not excluded in civil proceedings, and the notice rules go to weight and costs, not admissibility. Our depot witness got their answer in, and it was worth almost nothing. Two: the burden is on whoever asserts, the standard is the balance of probabilities, and only the evidential burden ever really shifts.

Three: no expert without permission, and the expert's duty to the court beats the duty to the client. Four: witness statements carry facts within personal knowledge and a statement of truth, and they stand as evidence-in-chief. Opinion, argument and what somebody else said all stay out. Five: affidavits survive for interim applications and contempt, and a witness summons compels attendance or documents, backed by contempt. Next time, Disclosure and Inspection.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.