Factual evidence



By 4pm on [date] all parties must serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely [in respect of ….] and all notices relating to evidence, including Civil Evidence Act notices.

Witnesses are those who give evidence (tell the court what they know about the matters in dispute). That includes yourself and the other parties. Their evidence must be recorded in witness statements. Copies of those must be sent to the other party or parties – not at this stage to the court.
You can bring in as evidence the statement (including a witness statement) of someone who does not give oral evidence in court. However you must give advance warning to the other party or parties in a notice which identifies the evidence and explains why the witness will not be at the trial.

Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court

Producing a surprise witness is not allowed.
If the judge is asked for permission to call a witness whose statement has not been served, he may well (if he allows the witness at all) require a statement to be served and adjourn the trial to let the other party or parties consider it and decide how to deal with that evidence – ordering the defaulting party to pay all the wasted expense.
Even if the judge allows the case to proceed with the ‘new’ witness, and even if the party is successful, the judge may order less costs (especially where the ‘new’ witness makes a difference to the result).  After all, the case might have been settled by agreement, if the other party had known of this witness.

Each party must:

  1. serve any request for clarification or further information based on any document disclosed or statement served by another party no later than fourteen days after disclosure or service and
  2. reply to any such request served on it within fourteen days of service of the request.

A party is entitled to request clarification of a witness statement that has been served; and the other party must respond to the request.
This direction sets a timetable for making the request and giving the response.

By 4pm [date] the parties must agree a plan and any photographs of the accident site

Where the claim arises from an accident, a plan and, if possible, photographs of the place where it happened must be provided. Witnesses’ statements and evidence can then refer to these.

Subject to any direction, ruling or finding of the trial judge the Police report and witness statements will be admissible in evidence

Usually, the Police will have prepared a report on a road accident. This direction means that (unless the trial judge decides otherwise) the report and any statements attached to it can be used at the trial without a police officer being called as a witness.

Subject to any direction, ruling or finding of the trial judge any employer’s accident report and Health and Safety Executive report with witness statements will be admissible in evidence.

Similarly, when there has been an accident at work, reports may have been prepared by the employer and/or the Health and Safety Executive. This direction provides that they may be used in evidence unless the trial judge decides otherwise.

The parties must preserve the vehicles pending any inspection that may be required.

In a case about a collision between vehicles, an engineer’s inspection may indicate how the accident happened and help to estimate the cost of repairs. Here the parties are ordered to retain the vehicles in their damaged state until there has been an opportunity to inspect them.

The [party] must preserve all plant and equipment relevant to the issues in this Claim

Plant and equipment in factories or other premises can be important as evidence but may be lost during modernisation or a removal. The party is directed not to let this happen to things that are relevant to the claim.

The evidence of [the witness] shall be taken on commission by a duly appointed Examiner of the Court by [date] [and recorded on DVD]

As a witness (including possibly a party) will not be able to attend court through ill-health or for some other good reason, the judge is authorising his evidence being given elsewhere. The parties will be able to attend and cross-examine if they wish. The Examiner will record the evidence in writing or by a DVD recording so that it can be read or watched by the trial judge in due course.
This is particularly important where the Claimant is suffering from a severely disabling disease such as Mesothelioma.
The parties will be able to attend and cross-examine if they wish. The Examiner will record the evidence in writing and in many cases on DVD so that it can be read and viewed by the trial judge in due course.

Each party has permission to rely on a short survey of ‘spot’ hire rates in the claimant’s locality.  Those factual surveys must be incorporated in or exhibited to a witness statement and must be exchanged by 4pm on [date].  The witness statement must include the following facts:
(a) who conducted the survey;
(b) when and in what way the survey was conducted;
(c) whether the survey established that equivalent vehicles were available for hire and the cost of the hire (to be set out in a concise schedule);
(d) whether there is any evidence to suggest that an equivalent vehicle would probably have been available at the time of the commencement of the hire.

The claim includes the cost of hiring a vehicle after an accident. There is a dispute whether the hire rate paid was excessive. Here the parties are each given permission to use a witness statement containing evidence to clarify that issue.


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