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THE ADMIRALTY & COMMERCIAL COURTS GUIDE 2006

 

H  Evidence for Trial
H1   Witnesses of fact
   Preparation and form of witness statements
H1.1   Witness statements must comply with the requirements of PD 32. The following points are also emphasised:
 
(i)   the function of a witness statement is to set out in writing the evidence in chief of the witness; as far as possible, therefore, the statement should be in the witness's own words;
 
(ii)   it should be as concise as the circumstances of the case allow without omitting any significant matters;
 
(iii)   it should not contain lengthy quotations from documents;
 
(iv)   it should not engage in argument;
 
(v)   it must indicate which of the statements made in it are made from the witness's own knowledge and which are made on information or belief, giving the source for any statement made on information or belief;
 
(vi)   it must contain a statement by the witness that he believes the matters stated in it are true; proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a witness statement without an honest belief in its truth: rule 32.14(1).
H1.2   It is improper to put pressure of any kind on a witness to give anything other than his own account of the matters with which his statement deals. It is also improper to serve a witness statement which is known to be false or which it is known the maker does not in all respects actually believe to be true.
   Fluency of witnesses
H1.3   If a witness is not sufficiently fluent in English to give his evidence in English, the witness statement should be in the witness's own language and a translation provided.
H1.4   If a witness is not fluent in English but can make himself understood in broken English and can understand written English, the statement need not be in his own words provided that these matters are indicated in the statement itself. It must however be written so as to express as accurately as possible the substance of his evidence.
   Witness statement as evidence in chief
H1.5  
(a)   Where a witness is called to give oral evidence, his witness statement is to stand as his evidence in chief unless the Court orders otherwise: rule 32.5(2).
(b)   In an appropriate case the trial judge may direct that the whole or any part of a witness's evidence in chief is to be given orally. Any application for such an order should be made at the beginning of the trial.
   Additional evidence from a witness
H1.6  
(a)   A witness giving oral evidence at trial may with the permission of the court amplify his witness statement and give evidence in relation to new matters which have arisen since the witness statement was served: rule 32.5(3). Permission will be given only if the Court considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement: rule 32.5(4).
(b)   A supplemental witness statement should normally be served where the witness proposes materially to add to, alter, correct or retract from what is in his original statement. Permission will be required for the service of a supplemental statement. Such application should be made at the pre-trial review or, if there is no pre-trial review, as early as possible before the start of the trial. If application is made at any later stage, the applicant must provide compelling evidence explaining its delay in adducing such evidence.
(c)   It is the duty of all parties to ensure that the statements of all factual witnesses intended to be called or whose statements are to be tendered as hearsay statements should be exchanged simultaneously unless the court has otherwise ordered. Witnesses additional to those whose statements have been initially exchanged may only be called with the permission of the court which will not normally be given unless prompt application is made supported by compelling evidence explaining the late introduction of that witness's evidence.
   Notice of decision not to call a witness
H1.7  
(a)   A party who has decided not to call to give oral evidence at trial a witness whose statement has been served must give prompt notice of this decision to all other parties. He must at the same time state whether he proposes to put the statement in as hearsay evidence.
(b)   If the party who has served the statement does not put it in as hearsay evidence, any other party may do so: rule 32.5(5).
   Witness summonses
H1.8  
(a)   Rules 34.2-34.8 deal with witness summonses, including a summons for a witness to attend court or to produce documents in advance of the date fixed for trial.
(b)   Witness summonses are served by the parties, not the court.
H2   Expert witnesses
   Application for permission to call an expert witness
H2.1   Any application for permission to call an expert witness or serve an expert's report should normally be made at the case management conference.
H2.2   Parties should bear in mind that expert evidence can lead to unnecessary expense and they should be prepared to consider the use of single joint experts in appropriate cases. In many cases the use of single joint experts is not appropriate and each party will generally be given permission to call one expert in each field requiring expert evidence. These are referred to in the Guide as "separate experts".
H2.3   When the use of a single joint expert is contemplated, the court will expect the parties to co-operate in developing, and agreeing to the greatest possible extent, terms of reference for that expert. In most cases the terms of reference will (in particular) identify in detail what the expert is asked to do, identify any documentary materials he is asked to consider and specify any assumptions he is asked to make.
   Provisions of general application in relation to expert evidence
H2.4   The provisions set out inAppendix 11 to the Guide apply to all aspects of expert evidence (including expert reports, meetings of experts and expert evidence given orally) unless the court orders otherwise. Parties should ensure that they are drawn to the attention of any experts they instruct at the earliest opportunity.
   Form and content of expert's reports
H2.5   Expert's reports must comply with the requirements of PD 35 Paragraphs 1 and 2.
H2.6  
(a)   In stating the substance of all material instructions on the basis of which his report is written as required by rule 35.10(3) and PD 35 Paragraph 1.2(8) an expert witness should state the facts or assumptions upon which his opinion is based.
(b)   The expert must make it clear which, if any, of the facts stated are within his own direct knowledge.
(c)   If a stated assumption is, in the opinion of the expert witness, unreasonable or unlikely he should state that clearly.
H2.7   It is useful if a report contains a glossary of significant technical terms.
H2.8   Where the evidence of an expert, such as a surveyor, assessor, adjuster, or other investigator is to be relied upon for the purpose of establishing primary facts, such as the condition of a ship or other property as found by him at a particular time, as well as for the purpose of deploying his expertise to express an opinion on any matter related to or in connection with the primary facts, that part of his evidence which is to be relied upon to establish the primary facts, is to be treated as factual evidence to be incorporated into a factual witness statement to be exchanged in accordance with the order for the exchange of factual witness statements. The purpose of this practice is to avoid postponing disclosure of a party's factual evidence until service of expert reports.
   Statement of truth
H2.9  
(a)   The report must be signed by the expert and must contain a statement of truth in accordance with Part 35.
(b)   Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, without an honest belief in its truth, a false statement in an expert's report verified in the manner set out in this section.
   Request by an expert to the court for directions
H2.10   An expert may file with the court a written request for directions to assist him in carrying out his function as expert, but
 
(i)   at least 7 days before he does so (or such shorter period as the court may direct) he should provide a copy of his proposed request to the party instructing him; and
 
(ii)   at least 4 days before he does so (or such shorter period as the court may direct) he should provide a copy of his proposed request to all other parties.
   Exchange of reports
H2.11   In appropriate cases the court will direct that the reports of expert witnesses be exchanged sequentially rather than simultaneously. The sequential exchange of expert reports may in many cases save time and costs by helping to focus the contents of responsive reports upon true rather than assumed issues of expert evidence and by avoiding repetition of detailed factual material as to which there is no real issue. Sequential exchange is likely to be particularly effective where experts are giving evidence of foreign law or are forensic accountants.This is an issue that the court will normally wish to consider at the case management conference.
   Meetings of expert witnesses
H2.12   The court will normally direct a meeting or meetings of expert witnesses before trial. Sometimes it may be useful for there to be further meetings during the trial itself.
H2.13   The purposes of a meeting of experts are to give the experts the opportunity
 
(i)   to discuss the expert issues;
 
(ii)   to decide, with the benefit of that discussion, on which expert issues they share or can come to share the same expert opinion and on which expert issues there remains a difference of expert opinion between them (and what that difference is).
H2.14   Subject to section H2.16 below, the content of the discussion between the experts at or in connection with a meeting is without prejudice and shall not be referred to at the trial unless the parties so agree: rule 35.12(4).
H2.15   Subject to any directions of the court, the procedure to be adopted at a meeting of experts is a matter for the experts themselves, not the parties or their legal representatives.
H2.16   Neither the parties nor their legal representatives should seek to restrict the freedom of experts to identify and acknowledge the expert issues on which they agree at, or following further consideration after, meetings of experts.
H2.17   Unless the court orders otherwise, at or following any meeting the experts should prepare a joint memorandum for the court recording:
 
(i)   the fact that they have met and discussed the expert issues;
 
(ii)   the issues on which they agree;
 
(iii)   the issues on which they disagree; and
 
(iv)   a brief summary of the reasons for their disagreement.
H2.18   If experts reach agreement on an issue that agreement shall not bind the parties unless they expressly agree to be bound by it.
   Written questions to experts
H2.19  
(a)   Under rule 35.6 a party may, without the permission of the court, put written questions to an expert instructed by another party (or to a single joint expert) about his report. Unless the court gives permission or the other party agrees, such questions must be for the purpose only of clarifying the report.
(b)   The court will pay close attention to the use of this procedure (especially where separate experts are instructed) to ensure that it remains an instrument for the helpful exchange of information. The court will not allow it to interfere with the procedure for an exchange of professional opinion at a meeting of experts, or to inhibit that exchange of professional opinion. In cases where (for example) questions that are oppressive in number or content are put, or questions are put for any purpose other than clarification of the report, the court will not hesitate to disallow the questions and to make an appropriate order for costs against the party putting them.
   Documents referred to in experts' reports
H2.20   Unless they have already been provided on inspection of documents at the stage of disclosure, copies of any photographs, plans, analyses, measurements, survey reports or other similar documents relied on by an expert witness as well as copies of any unpublished sources must be provided to all parties at the same time as his report.
H2.21  
(a)   Rule 31.14(e) provides that (subject to rule 35.10(4)) a party may inspect a document mentioned in an expert's report. In a commercial case an expert's report will frequently, and helpfully, list all or many of the relevant previous papers (published or unpublished) or books written by the expert or to which the expert has contributed. Requiring inspection of this material may often be unrealistic, and the collating and copying burden could be huge.
(b)   Accordingly, a party wishing to inspect a document in an expert report should (failing agreement) make an application to the court. The court will not permit inspection unless it is satisfied that it is necessary for the just disposal of the case and that the document is not reasonably available to the party making the application from an alternative source.
   Trial
H2.22   At trial the evidence of expert witnesses is usually taken as a block, after the evidence of witnesses of fact has been given. The introduction of additional expert evidence after the commencement of the trial can have a severely disruptive effect. Not only is it likely to make necessary additional expert evidence in response, but it may also lead to applications for further disclosure of documents and also to applications to call further factual evidence from witnesses whose statements have not previously been exchanged. Accordingly, experts' supplementary reports must be completed and exchanged not later than the progress monitoring date and the introduction of additional expert evidence after that date will only be permitted upon application to the trial judge and if there are very strong grounds for admitting it.
H3   Evidence by video link
H3.1   In an appropriate case permission may be given for the evidence of a witness to be given by video link. If permission is given the court will give directions for the conduct of this part of the trial.
H3.2   The party seeking permission to call evidence by video link should prepare and serve on all parties and lodge with the Court a memorandum dealing with the matters outlined in the Video Conferencing Guidance contained in Annex 3 to PD 32 (see Appendix 14) and setting out precisely what arrangements are proposed. Where the proposal involves transmission from a location with no existing video-link facility, experience shows that questions of feasibility, timing and cost will require particularly close investigation.
H3.3   An application for permission to call evidence by video link should be made, if possible, at the case management conference or, at the latest, at any pre-trial review. However, an application may be made at an even later stage if necessary. Particular attention should be given to the taking of evidence by video link whenever a proposed witness will have to travel from a substantial distance abroad and his evidence is likely to last no more than half a day.
H3.4   In considering whether to give permission for evidence to be given in this way the court will be concerned in particular to balance any potential savings of costs against the inability to observe the witness at first hand when giving evidence.
H4   Taking evidence abroad
H4.1   In an appropriate case permission may be given for the evidence of a witness to be taken abroad. CPR Part 34 contains provisions for the taking of evidence by deposition, and the issue of letters of request.
H4.2   In a very exceptional case, and subject in particular to all necessary approvals being obtained and diplomatic requirements being satisfied, the court may be willing to conduct part of the proceedings abroad. However, if there is any reasonable opportunity for the witness to give evidence by video link, the court is unlikely to take that course.