Evidence

Introduction

This chapter focuses on the **evidence stage** of civil proceedings — the next step after the statements of case and disclosure. The rules governing **how** evidence is adduced and **what** evidence may be used in civil proceedings are found in **Parts 32, 33 and 35 of the Civil Procedure Rules (CPR)**. We examine the **burden and standard of proof**, the three related hurdles all evidence must clear — it must be **relevant** and **admissible**, and where it is **hearsay** the special rules of the Civil Evidence Act 1995 apply — and then turn to **expert evidence** and **witness evidence**, including the duties of experts, single joint experts, witness statements, statements of truth and affidavits.

Assessment focus

For the SQE1 FLK1 Dispute Resolution assessment, you must understand how evidence operates in **civil proceedings**. You should be able to identify the **burden of proof** (generally on the claimant, switching to the defendant on a counterclaim) and the civil **standard of proof** (**balance of probabilities** — greater than 50% certainty). You must distinguish **relevant** from irrelevant evidence, apply the **statutory definition of hearsay** in s. 1(2) of the **Civil Evidence Act 1995**, and know that hearsay is **admissible** in civil proceedings subject to the **notice requirement** in s. 2. You should know the rules on **expert evidence** (CPR Part 35; s. 3(1) Civil Evidence Act 1972), the **overriding duty of the expert to the court** (r 35.3), the use of **single joint experts** (PD 28, para 3.9) and the content requirements of **witness statements** (PD 32, para 18.1) and the **statement of truth**. Questions are single best answer questions (SBAQs) set in realistic client-based scenarios; this is a closed-book assessment.

Study tips

1) Remember the basic rule: in civil claims the **burden of proof lies on the claimant**, and **those who allege a fact must prove it** — the onus switches to the defendant on a **counterclaim**. (The 'golden thread' that the burden lies on the prosecution is a **criminal**-law concept from **Woolmington v DPP** [1935] AC 462; do not apply it to civil claims.) 2) The civil **standard of proof** is the **balance of probabilities** — the claimant's version must be **more likely than not** to be true (greater than 50% certainty). 3) Apply the **three-question hearsay test** (out-of-court statement? tendered to prove its truth? admissible statement of fact or opinion?). 4) Hearsay is **admissible** in civil proceedings but is **not the best evidence** — note the **s. 2 notice** requirement. 5) Memorise that the expert's duty to **help the court overrides** any duty to the instructing party (**r 35.3**; **Stevens v Gullis**) and that **fast-track** cases generally attract a **single joint expert** (PD 28, para 3.9). 6) Do not confuse the **civil** definition of hearsay (Civil Evidence Act 1995) with the **criminal** definition (Criminal Justice Act 2003, ss. 114–115).