5th Nov 2018 | Articles

Richard Samuel has written an article for New Law Journal on ‘Achieving best evidence in the civil courts’. In the article published on 19th October 2018, Richard considers whether a power to hear pre-recorded direct evidence would help judges maintin high standards of justice.


Achieving best evidence in the civil courts

Richard Samuel considers whether a power to hear pre-recorded direct evidence would help judges maintain high standards of justice.

In some cases, oral evidence is more important than in others. In those cases, it is often the oral evidence of just one or two witnesses that really counts. In contract cases those witnesses will be the people who attended the meeting at which an agreement is said to have been concluded, but of which there is no written record. In tort cases it will be the child who witnessed the accident. In both a criminal case and a civil case brought in tort, it will be the evidence of a student who says she was sexually assaulted on a date in freshers’ week.

What tools do our civil judges have to deal with such cases? How do they employ them? CPR 32.4 requires that witness evidence for trial trials is set out for the court in a written witness statement. Indeed CPR 32.10 ordinarily makes a witness statement a pre-condition to a witness giving evidence and, under CPR 32.5(2), it will normally stand as his or her evidence in chief. After a couple of questions in chief from counsel ‘settling’ a witness, she is turned over to opposing counsel for the ordeal of cross-examination. The standard approach in CPR 32 serves the overriding objective the civil courts have set for themselves at CPR 1.1, primarily because it allows the other side to know the evidence brought against them and it saves court time at trial.

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