Part 29 – Evidence

Power of court to control evidence

29.1

1. The court may control the evidence to be given at any trial or hearing by giving appropriate directions, at a case management conference or by other means, as to the –
   1. issues on which it requires evidence; and
   2. way in which any matter is to be proved.

Evidence at trial – general rule                

29.2

1. The general rule is that any fact which needs to be proved by evidence of witnesses is to be proved at –
   1. trial – by their oral evidence given in public; and
   2. any other hearing – by affidavit.
2. The general rule is subject to any –
   1. order of the court; and
   2. provision to the contrary contained in these Rules or elsewhere.
3. Any evidence taken at the trial or other hearing of any proceedings may be used subsequently in those proceedings.
   • Part 30 deals with affidavits.

Evidence by video link or other means

29.3

1. The court may allow a witness to give evidence without being present in the courtroom, through a video link or by any other means.

Requirement to serve witness statements

29.4

1. The court may order a party to serve on any other party a statement of the evidence of any witness upon which the first party intends to rely in relation to any issue of fact to be decided at the trial.
2. A statement of the evidence referred to in paragraph (1) is known as a “witness statement”.
3. A party’s obligation to serve a witness statement is independent of any other party’s obligation to serve such a statement.
   • Rule 29.7 provides a procedure that may be adopted when one party does not serve witness statements by the date directed.
4. The court may give directions as to –
   1. the order in which witness statements are to be served; and
   2. when they are to be filed.

Form of witness statements   

29.5

1. A witness statement must –
   1. be dated;
   2. be signed or otherwise authenticated by the intended witness;
   3. give the name, address and occupation of the witness;
   4. include a statement by the intended witness that he or she believes the statements of fact in it to be true;
   5. not include any matters of information or belief which are not admissible or, where admissible, must state the source of any matters of information or belief;
   6. so far as reasonably practicable, be in the intended witness’ own words; and
   7. sufficiently identify any document to which the statement refers without repeating its contents unless this is necessary in order to identify the document.
2. The court may order that any inadmissible, scandalous, irrelevant or otherwise oppressive matter be struck out of any witness statement.

Witness summaries      

29.6

1. A party who is required to provide and is not able to obtain a witness statement may serve a witness summary instead.
2. The party who serves a witness summary must certify on the witness summary the reason why a witness statement could not be obtained.
3. A “witness summary” is a summary of the –
   1. evidence, so far as is known, which would otherwise be included in a witness statement; or
   2. matters about which the party serving the witness summary pro­poses to question the witness, if the evidence is not known.
4. Unless the court orders otherwise, a witness summary must include the name and address of the intended witness or other sufficient means of identifying the intended witness.
5. A witness summary must be served within the period in which a witness statement would have had to be served.
6. Where a party provides a witness summary, so far as practicable, rules 29.4 (requirement to serve witness statements), 29.7 (procedure where one party does not serve witness statements by date directed), 29.8 (witness to give evidence unless court otherwise orders) and 29.9 (amplifying witness statements at trial) apply to the witness summary.

Procedure where one party does not serve witness statement by date directed

29.7

1. This rule applies where –
   1. one party (the “first party”) is able and prepared to comply with the order to serve witness statements; and
   2. the other party fails to make reasonable arrangements to ex­change statements.
2. The first party may comply with the requirements of this Part by  –
   1. filing the witness statements In a sealed envelope at the court office by the date directed; and
   2. giving notice to all other parties that the witness statements have been filed.
3. Statements filed pursuant to paragraph (2) must not be disclosed to the other party until the other party certifies that the witness state­ments or summaries in respect of all witnesses upon whose evidence the other party intends to rely have been served.

Witness to give evidence unless court otherwise orders        

29.8

1. If a party –
   1. has served a witness statement or summary; and
   2. wishes to rely on the evidence of that witness; that party must call the witness to give evidence unless the court orders otherwise.
2. If a party –
   1. has served a witness statement or summary; and
   2. does not intend to call that witness at the trial; that party must give notice to that effect to the other parties not less than 28 days before the trial.

Amplifying witness statements at trial

29.9

1. A witness giving oral evidence may with the permission of the court –
   1. amplify the evidence as set out in his or her witness statement if that statement has disclosed the substance of the evidence which the witness is asked to amplify;
   2. give evidence in relation to new matters which have arisen since the witness statement was served on the other parties; or
   3. comment on evidence given by other witnesses.

Cross-examination on witness statement

29.10

1. If a witness is called to give evidence at trial, that witness may be cross examined on the evidence as set out in his or her witness statement, whether or not the statement or any part of it was referred to during the witness’ evidence in chief.

Consequence of failure to serve witness statement or summary

29.11

1. If a witness statement or witness summary is not served in respect of an intended witness within the time specified by the court, the witness may not be called unless the court permits.
2. The court may not give permission at the trial unless the party asking for permission has a good reason for not previously seeking relief under rule 26.8.

Use of witness statement for other purposes

29.12

1. Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
2. Paragraph (1) does not apply if and to the extent that the –
   1. court gives permission for some other use of it;
   2. witness gives consent in writing to some other use of it; or
   3. witness statement has been put in evidence.

Notice to admit facts    

29.13

1. A party may serve notice on another party requiring that other party to admit the facts or the part of the first party’s case specified in the notice.
2. A notice to admit facts must be served no later than 42 days before the trial.
3. If the other party makes any admission in response to the notice to admit facts, the admission may be used against that party only –
   1. by the party who served the notice; and
   2. in the proceedings in which the notice is served.
4. If the party served with the notice to admit does not admit the facts set out in the notice within 21 days of service of the notice upon that party, the court may assess the costs incurred by the party serving the notice in proving such facts and order the party served with the notice to pay such costs.
   • Rule 65.11 deals with assessment of costs.