Evidence under Woolf has been rationalised. The rules dealing with the admission and presentation of evidence are detailed and clear.
Again, the court is in the driving seat. Part 32.1 states: “The court may control the evidence by giving directions as to the issues on which it requires evidence, the nature of the evidence which it requires to decide those issues [and] the way in which the evidence is to be placed before the court.”
If the judges apply this power pro-actively, it will impact the way in which cases are prepared.
Any fact that needs to be proved by the evidence of witnesses is to be proved orally at trial and, at any other hearing, in writing.
Under the CPR, adducing evidence can be described as ‘anything goes’. Subject to the practice direction, evidence can be submitted by witness statement, statement of case or application notice (with a statement of truth), or affidavit. The practice direction also offers guidance as to the format and content of affidavits and witness statements.
If a party is not able to prepare a witness statement, they may apply to serve a ‘witness summary’ instead.
It must contain the evidence that would have been in a witness statement or, if the evidence is not known, the matters about which the witness will be questioned. Notices to admit facts and to produce documents are retained in part 32.
The reforms introduce a new regime for experts, while not going as far as Lord Woolf first suggested in his interim report – the adoption of a single expert appointed by and reporting to the court. This proposal met with fierce opposition and was watered down as follows.
Expert’s duty
Rule 35.3 states: “It is the duty of an expert to help the court on the matters within his expertise. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.”
