Trial Oral Evidence

Trial Oral evidence in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]Evidence in chief is ordinarily adduced by the witness confirming on oath the truth and accuracy of the previously served witness statement or statements. A limited number of supplementary oral questions will usually be allowed (a) to give the witness an opportunity to become familiar with the procedure and (b) to cover points omitted by mistake from the witness statement or which have arisen subsequent to its preparation. In some cases, particularly those involving allegations of dishonest, disreputable or culpable conduct or where significant disputes of fact are not documented or evidenced in writing, it is desirable that the core elements of a witness’s evidence-in-chief are given orally. The giving of such evidence orally will often assist the Technology and Construction Court in assessing the credibility or reliability of a witness. If any party wishes such evidence to be given orally, a direction should be sought either at the Pre-trial Review or during the openings to that effect. Where evidence in chief is given orally, the rules relating to the use of witness statements in cross-examination and to the adducing of the statement in evidence at any subsequent stage of the trial remain in force and may be relied on by any party. It is usual for all evidence of fact from all parties to be adduced before expert evidence and for the experts to give evidence in groups with all experts in a particular discipline giving their evidence in sequence: see paragraph 13.8.2 above for ways for expert evidence to be given. Usually, but not invariably, the order of witnesses will be such that the claimant’s witnesses give their evidence first, followed by all the witnesses for each of the other parties in turn. If a party wishes a different order of witnesses to that normally followed, the agreement of the parties or a direction from the judge must be obtained in advance. In a multi-party case, attention should be given (when the timetable is being discussed) to the order of cross-examination and to the extent to which particular topics will be covered by particular cross-examiners. Where these matters cannot be agreed, the order of crossexamination will (subject to any direction of the judge) follow the order in which the parties are set out in the pleadings. The judge will seek to limit cross examination on a topic which has been covered in detail by a preceding cross examination. In preparing witness statements and in ascertaining what evidence a witness might give in an original or supplementary witness statement or as supplementary evidence-in-chief, lawyers may discuss the evidence to be given by a witness with that witness. The coaching of witnesses or the suggestion of answers that may be given, either in the preparation of witness statements or before a witness starts to give evidence, is not permitted. In relation to the process of giving evidence, witness familiarisation is permissible, but witness coaching is not. The boundary between witness familiarisation and witness coaching is discussed in the context of criminal proceedings by the Technology and Construction Court of Appeal in R v Momodou [2005] EWCA Crim 177 at [61] – [62]. Once a witness has started giving evidence, that witness cannot discuss the case or their evidence either with the lawyers or with anyone else until they have finally left the witness box. Occasionally a dispensation is needed (for example, an expert may need to participate in an experts’ meeting about some new development). In those circumstances the necessary dispensation will either be agreed between the advocates or ordered by the judge.