Civil Procedure – L9 – Witness, Experts and Trial1. Witness Statements Traditionally, witnesses only gave testimony during the trial (they had no role in the pre-trial process) Nowadays, the evidence of the factual witnesses is contained in written statements which are exchanged weeks or even months before the trial Rules contained in Order 38, rule 2A Usually exchanged at a particular time and place and done mutually 4.1 Purposes The purposes of written and exchanged witness statements: o Promote early settlement o Improve pre-trial preparation o Shorten trial period by focusing on key issues in dispute o Prevent surprises at the trial 4.2 Form of the witness statement A witness statement is prepared in the first person and in the witness‟ own words – WB 38/2A/7 o However, the legal representative taking witness statements must provide some guidance as to the proper scope of the statement. The witness statement has to be prepared very carefully and it should be as comprehensive as possible o It should contain all the evidence that the witness is able to adduce to prove his case. o It should include facts and not opinion (since it is akin to oral evidence at the trial, the usual evidential rules still apply) – WB 38/2A/6 o The person preparing the statement also has to ensure that the statement only contains facts which were within the knowledge of the witness. The witness statement must also contain a statement of truth (new CJR requirement) – O.38, R.2A (4)(a); O.41A o The purpose is to make sure that the person making the statement does not make false statements o In the absence of a statement of truth, the witness statement will be inadmissible unless the court ordered otherwise. Solicitors taking witness statements must exercise great care to ensure the statement contains the truth. 1 the court may require the witness to give evidence in chief orally in order to assess his reliability and credibility (at the discretion of the court).E. they are usually then identified and included in an appendix to the statement. 572 – the Applicant filed his witness statement almost a year after the initial deadline without making any effort to inform the court of any anticipated or actual non-compliance of such court order nor did the Applicant apply for an extension of time for filing and exchange/service of witness statements. The Court warned parties/practitioners that: “under the new CJR regime.K. or at all.3 Witness statement = examination-in-chief Nowadays.4 Failure to exchange a witness statement Parties are required to confirm that they have served all witness statements (and the names of the witnesses) in the Listing Questionnaire to be filed before the Case Management Conference or Pre-Trial Review – Practice Direction 5. 2 .Civil Procedure – L9 – Witness. may lead to the exclusion of the evidence of that witness at the trial.C. o It should contain numbered paragraphs and it should be signed at the end. The witness statement should not be ordered to stand as evidence in chief where the witness‟s evidence is likely to be controversial or the witness credibility is likely to be in issue – Hanwa Kozai (HK) Co Ltd v Hangyiu Ltd [1995] 1 HKC 841 1. Experts and Trial o A person who makes a false statement without an honest belief in its truth may be liable for contempt proceedings. 113 1.2.K. Ma Hei Sun [2001] 3 H. v. o Ip Sau Lin v. o But the court will have to be sure that the penalty is proportionate to falsity in the statement) Form of witness statement – WB 38/2A/7 o The witness statement starts with the witness‟ name. his solicitor should translate it and explain it to him before asking him to sign it and the solicitor should make a declaration at the end that it has been translated and explained to the witness – Cheung Kai Wing v. 458 Serving late will not be allowed without leave of the court. o If the statement has been translated to the witness. or part of it.C. shall stand as the evidence in chief of the witness If there is significant conflict of evidence in the witness‟ statements.C. written witness statements are treated as the examination-in-chief of the witness and he can be cross examined almost immediately o But the party serving the statement still needs to call the witness and it is up to the court to direct that the statement served. Ltd. A party that fails to exchange a witness statement may be subjected to an unless order o The court held that it had jurisdiction to make an “unless order” for the filing and serving of witness statements – Kai Yip Air-Condition Engineering Co. and is and will be discouraged”. o If there are some documents that are referred to. Appendix C. o It is best to deal with the events chronologically. The two crucial considerations are the need to ensure that other parties are not prejudiced by the delay and the need to avoid disruption of the court‟s timetable. Hospital Authority [2009] H. Mok Sheung Shum (t/a Mok Sum Kee) (Tugu Insurance Co. third party) [1993] 2 H. A9 Failure to exchange a witness statement within the prescribed time. failing to comply with court-imposed timetable for steps to be taken on good and sufficient grounds is tantamount to sabotaging the court’s case management function. address and occupation.K. the opponent may be deprived of the advance notice that the process is intended to secure or the court timetable may be disrupted by the need of an adjournment.38A. The opposing party will not be allowed to use the evidence in that statement and it should not assume that the witness will necessarily give evidence. Experts and Trial 1. if permission is given.2A states that no witness (whose written statement has not been provided to the other party) may be called unless there is a good cause and the court gives leave – Woonsing Ltd. o If permission is withheld. Under the CJR. if it thinks fit to do so. the court may very likely refuse. that does not mean that it has to call that witness.Civil Procedure – L9 – Witness. HCA 6744/1998) (CFI) Before the CJR. there is more flexibility where court may grant leave to allow witness to give further details or give evidence in relation to facts that have arisen since the statement was served (there has to be good cause though). o The court has to balance the interests of the parties.5 Call for witnesses O. 3 . o Leave of court is required and usually the court will allow a party to adduce it once.6 Suplementary statement of witnesses The court has power. the witness could not give additional evidence in chief at trial unless the parties agreed or the court granted leave. R. to direct that a further written statement of a witness be served supplementary to that already served – WB 38/2A/10 Supplemental witness statement o May be necessary to file a supplemental witness statement to deal with issues raised in the opposing party‟s statements. the witness may be prevented from disclosing all the relevant information in his possession and the court may be deprived of material evidence. 1. Exercising the discretion. o However. If a party prepares a witness statement and files it. o But. v Wong Yi Ming (Unreported. if it is requested too close to the trial date. Healey & Baker [2000] WL 1741454 (Ch D) The duties can basically be into two categories: impartiality and transparency – Ikarian Reefer [1993] 2 Lloyd’s Rep 68 (HC) o Impartiality requires the expert to reach a conclusion that is in accordance with the evidence and in conformity with the scientific rules and information governing his subject. the reasons for the conclusions. R.35A It is admissible because where there is an issue which concerns a technical point.e. Witnesses are confined to giving the most concrete possible account of the event (i. regardless of whether his conclusion satisfies his instructing client. the court has to explain its reasons for accepting the evidence of one expert and rejecting that of another. o Competence is normally determined by reference to professional or formal qualifications or by the nature of the witness‟s knowledge and experience. 4 . in a case concerning negligent driving. the court may accept the opinions and conclusions of experts on matters that require specialised knowledge or training – O. A witness is competent to give expert evidence only if the court is satisfied that the witness is adequately qualified in the subject in question. Ltd v. should clearly indicate the underlying assumptions on which the conclusions are based.38. a witness may testify how fast a car was travelling before the accident but not whether the motorist was reckless or negligent). Where there is a conflict of expert evidence. o Transparency requires that expert reports should be comprehensible. witnesses are only allowed to testify to facts and not to their opinions. 2. Experts and Trial 2. It is the duty of the court to draw inferences from the facts stated by the witness. Expert evidence 2. As an exception to the rule. It is important to note that the court must subject expert testimony to scrutiny just as it does with respect to non-expert testimony.2 Expert witnesses‟ duty and obligation An expert‟s primary obligation is to help the Court on the matters within his expertise and this duty takes precedence over any obligation to the person from whom the expert witness has received instructions or by whom he is paid.Civil Procedure – L9 – Witness. and any doubts that may remain in the expert‟s mind.1 General Normally. o It was held that an expert‟s duty to the court includes a duty to cover and give opinions upon the whole of the relevant subject matter and not to select only the evidence which supports the case of the party instructing him – Royal & Sun Alliance Trust Co. it may be more useful to have an expert give evidence to enable the court to arrive at a fair result. The court can now examine the evidence and rule portions of it inadmissible. there has been a tendency to rely heavily on experts (trying to overwhelm the other side with the sheer amount of evidence). 5 . If the court feels that no expert evidence is necessary.Civil Procedure – L9 – Witness. O.5 Disclosure of expert report Experts‟ reports are exchanged after exchange of witness statements. A date for exchange may be agreed by the parties. thereby controlling the number of experts a party can call. The changes were made to allow the court to better manage resources and to save time. especially where the late disclosure is likely to delay the disposal of the case.4 New requirements under the CJR The use of experts in litigation is now placed under the complete control of the court and no party may rely on expert evidence without the court‟s permission or where all parties agree. o The courts are also reluctant at times to admit unnecessary expert evidence because these experts are usually being paid for by the party calling them and there is always the danger of the expert taking the side of the party paying the expert.38. R. A party who is late in disclosing an expert report may find that the court is not willing to permit the expert to be called. or may be ordered by the court at the hearing of the case management summons or on separate application. 2. Problems with the growth of professional expert industry o More time has to be spent on looking at expert evidence which is often of theoretical nature and based primarily on assumptions rather than facts. Experts and Trial 2. it may not even allow the calling of such an expert. 2. The court may direct simultaneous or sequential exchange.36 The courts have the discretion to limit the requests for additional expert evidence.3 Problems of expert opinions In recent years. a party. Held: The court allowed the application. for reasons which are not fanciful.” 6 . Single Joint Expert The court has the power to order the parties to appoint only one joint expert – O. receives joint instructions. There can be difficulties with this approach: o If there are different schools of thought in his field of expertise and the expert belongs to one of these. Experts and Trial 3. Facts: An occupational therapist was appointed as joint expert to deal with a contentious question as to the care regime which an accident victim would require. made it clear that appointment of a single joint expert did not preclude a further expert being appointed: “If.4A The process saves costs considerably and brings a level of objectivity that is difficult to attain when compared to the appointment of adversarial experts. wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge .R. o Since there is only one expert. having obtained a joint expert’s report.38. the party who is dissatisfied with the joint expert should submit questions to the joint expert to see whether he can obtain a satisfactory explanation. giving the judgment.L. the judge will have to rely on his expertise and the expert effectively takes on the role of the judge. o It is therefore only appropriate to appoint a joint expert where the question in dispute can be resolved in a straightforward and uncontroversial answer (“low value. low complexity” cases). R. A joint expert is paid by both parties. A party who wishes to challenge a joint expert can do so by calling his own witness but this should not be easily allowed o Before seeking to engage a new expert. hears both parties and communicates with both of them (eliminating the possibility of being influenced by one party alone). Walker [2000] 1 W. Lord Woolf.Civil Procedure – L9 – Witness. o If the dispute cannot be resolved by this measure... Daniels v. o The court would permit the party to call his own expert only if the party has substantial reasons for disputing the joint report and only if it is proportionate to the value of the case and its importance. the court should proceed to consider whether to allow the party to call his own expert. The resulting report was hotly disputed and led to much solicitors‟ correspondence and the defendant eventually applying to the court for permission to call a further expert. there is a danger he will place less reliance on the other approaches. 1382. the issues on which they disagree and the reasons for their disagreement. Meeting of experts The court has the power to require experts to hold discussions amongst themselves in order to identify the issues in the proceedings and try to reach agreement on particular issues within their competence.Civil Procedure – L9 – Witness. The court has the power to direct that the clients and their lawyers should not attend experts‟ discussions. In order to facilitate a free discussion of ideas without any fear of adverse inferences being drawn from any concessions. The report that the experts produce following a meeting is not privileged. Experts and Trial 4. 7 . The court may specify the issues which the experts should discuss and instruct them to prepare a joint statement indicating the issues on which they agree. Such discussions enable better and deeper understanding of the issues and soften adversarial posturing because it is more difficult to stick to set opinions or insist on untenable positions in the presence of equally qualified peers. the content of the discussion between the experts is considered to be „without prejudice‟. Assessors A person appointed by the court to assist it in the discharge of its judicial role – O. Experts and Trial 5. they cannot be cross-examined They may be required to attend the whole or any part of the trial and where necessary.33. S53 of HCO They are normally persons who possess specialist knowledge in a field that is relevant to an issue that the court is called upon to decide Their function is to sit with the court hearing the evidence and help the court understand the evidence and assess its implications They can play an important part in the process because if the determination of the issues demands specialist training or knowledge which the judges do not possess.6. the parties must have an adequate opportunity to respond to the assessors‟ advice Therefore. the judges may rely heavily on assessors Assessors are not expert witnesses They sit with the judge and assist the court in its deliberations both during the presentation of evidence and argument and after they have been concluded Since they assist the court in its judicial role. R. they should advise the tribunal in the presence of the parties and in circumstances in which the parties have an opportunity to make submissions on that advice before the tribunal makes its decision 8 .Civil Procedure – L9 – Witness. the court may appoint more than one assessor Since they can exert considerable influence on the outcome of a case. o The bundle contains the writ.1 9 . o By this point. and advance their arguments Although only a minority of cases eventually reach the trial stage. the Plaintiff must first lodge a bundle of documents to the Master or Listing judge. the CJR have given courts powers to influence the fact finding process long before the trial hearing o Nowadays. If the master or listing judge is satisfied.2 Setting down an action for trial is a procedural step which is taken when the action is ready for trial.Civil Procedure – L9 – Witness. all orders made.34.34.g. Setting a case down for trial A trial date or a trial period will usually be fixed at a case management summons or CMC – O. the fairness and effectiveness of the rules governing the trial process continues to be of great importance Whilst the trial process may have been heavily reliant on oral submissions at the hearings in the past.D 7. To set a case down for trial. R. If the Master or the listing judge is not satisfied that all directions have been complied with. the parties are required to supply to the court in advance virtually all the evidence and arguments on which they wish to rely (e.1& O. all the pleadings. leave will be granted and the case will be placed in either the Running List or the Fixture List. query the other side‟s evidence. with a jury It is the stage of the litigation process during which the parties present their evidence. in a very small number of cases.34.3(2) The Master will then hear the application to set the case down for trial which is usually made by the handling solicitor. R. he can adjourn the application to a later date and give further directions to the parties. much of the trial hearing today is devoted to the clarification of difficult issues and to commenting on matters that the court designates. Trial The trial is the final and most visible stage of the litigation process They are almost always held in public before a judge sitting alone or. R. all interlocutory matters have usually been dealt with and the matter can proceed to trial. Experts and Trial 6. – P. witness statements. 7. expert reports and skeleton arguments) o Apart from cross examination of controversial witnesses. the legal aid documents (if any) and all the witness statements. o The documents are usually in chronological order – O. 35. it can apply to the Listing Judge but there must be a good reason (i. the cases on the Pending List that may be tried the following week are placed on the Warned List. by direction: o Limit the time to be taken in examining.35. two days before the date of trial. The Running List has two parts: Part I is for cases of estimated trial length of 3 days or less and Part II is for cases with an estimated length of 4 to 6 days. 10 . Pre-trial Review The date of the PTR is usually set after the submission of the case management questionnaire. and o Limit the time to be taken by the trial. Lists Cases with an estimated length in excess of 6 days are usually in the Fixture List. o Limit the time for making oral submissions. o The complexity or simplicity of the case. If a party wishes to switch case from Running to Fixture List.25.1A. Experts and Trial 8. At the end of each month. cross-examining or re-examining witnesses. the court shall have regard to the following matters in addition to any other matters that may be relevant: o The time limited for a trial must be reasonable.e. a witness who may have to travel to give evidence). cases in the Running List which are expected to be tried in the next month are put on the Pending List and each Wednesday. the court may.Civil Procedure – L9 – Witness. Notice period for Part I cases is 2:30 p. under O.m. R. The PTR date is a milestone date which will be set bythe court at an early stage in the conduct of the action. R. at any time before or during a trial. o The state of the court lists. o The time expected to be taken for the trial. Purpose: Case management. R. o Limit the time to be taken by a party in presenting its case. he can give directions. o Limit the number of witnesses (including expert witnesses) that a party may call on particular issues. o The volume and character of the evidence to be led. If there are any unresolved issues regarding the witness statements or experts. o Any such direction must not detract from the principle that each party is entitled to a fair trial. before the day of trial and for Part II cases. 9. The judge makes sure that the parties are ready for trial and if there are still any outstanding issues.3A confers the court an express power to more effectively manage the trial process Under O. o The number of witnesses to be called by the parties. and o The importance of the issues and the case as a whole. and cannot be moved without some exceptional reason 10.m. It is up to the parties to check the lists (although a notice will be sent to them when they are placed on the Warned List). the court will also deal with these at the PTR. Managing the trial process A new O. In deciding whether to make any such direction. This date is set shortly before the trial date and the PTR normally takes place before the assigned trial judge. it is 2:30 p.3A. o Any such direction must not detract from the principle that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses. 33.4(2) A party can also apply to split the trial but it must provide valid reasons 12. The plaintiff will then call evidence (from factual witnesses to experts). 14. he is entitled to judgment dismissing the claim with costs. all issues in a case should be tried at the same time However. limitation) or for the liability and quantum issues to be heard separately – O. he must prove his claim but only to the extent of the allegations made in the statement of claim. call evidence (cross examined by the plaintiff and re-examined by the defendant) and make closing submissions. o If only the defendant appears. R. one core agreed bundle can be prepared This core bundle should contain the main documents related to the dispute 13.1(1) If one party fails to appear. it is possible for court to sometimes split the trial and have one particular issue considered first (i.Civil Procedure – L9 – Witness. Split trials Generally. Trial bundles Where parties wish to place documents before the trial judge.35. the court may give judgment immediately or may give judgment later. Course of the trial Subject to any direction given by the trial judge. Where judgment is given in default of appearance of a party at trial. the court may order the action to be struck out of the list (it may be restored to the list on the direction of the judge) – O.35.35. If the defendant does not call evidence. the plaintiff will make closing submissions (which will be followed by the defendant stating his case). R.6 The parties bear the onus to agree on the trial bundles It is usually the Plaintiff‟s solicitor who will propose the documents. Failure of a party to appear at trial If neither party appears at the trial. the judge may proceed with the trial in the absence of that party – O. If the defendant does call evidence. it may be set aside by the court on the application of that party on terms as it thinks fit – O. the Plaintiff‟s draft bundle can be submitted to the trial judge and the additional documents can be inserted There should be sufficient bundles for the parties.e. Experts and Trial 11. although if he has a counterclaim.1(2) o If it is the plaintiff who appears. and then re-examined by the plaintiff. the defendant will make opening submissions. he must prove it. R. R.D 5. the normal rule is that the plaintiff should begin by opening his case.2(1) 11 . The plaintiff‟s witnesses will be cross-examined by the defendant. judge and witnesses The bundle should be paginated Only documents that are likely to be referred to during the trial should be included (otherwise there could be costs consequences) If the bundle exceeds 100 pages or is otherwise very long. it is their solicitors‟ responsibility to agree and prepare a bundle of documents in loose-leaf files – P. prepare the draft bundle and ask the Defendant‟s solicitor to consider it in good time If there is some disagreement. After hearing the parties‟ evidence and submissions. The plaintiff makes submissions in reply.