Non-Live Evidence

Table of Contents

Oral Trial the Norm

The rules of the court provide that in the absence of an agreement to the contrary, the general rule is that witnesses in court proceedings are to give evidence to the court orally. The courts place a high value on the trial with verbal testimony and cross-examination, which gives the court (or jury) the opportunity to view the demeanour of the witness and assess their credibility.

The court may for good reason, order that particular facts be proved by affidavit and that affidavits should be read at hearing on such conditions as are reasonable.

The court may order that attendance shall be dispensed with and that a witness be examined by interrogatories by a commissioner or examiner. A prior application is made and the court must be satisfied that the witness is not bona fide required the persons for cross-examination. Where a cross-examination is bona fide required by the other party, the taking of evidence in this way is not permitted.

The courts do not favour evidence that goes to the heart of the dispute, being proved on affidavit. Evidence on affidavit is more likely to be allowed in relation to formal or collateral matters. The court has the discretion to permit evidence in this way, but it will not readily do so without good reason. Generally,

the facts must be matters which are not significantly in dispute,
there must be serious difficulty and expense in producing the witnesses and
the risk of injustice so requires.

Evidence on Commission

The court may permit evidence to be given on commission where it appears necessary. This is most commonly done where a person is outside the jurisdiction and is unwilling to attend or is unable to attend due to illness or incapacity.

An application must be made to have evidence taken by commission, by way of a motion to court based on affidavit. The application will be granted, only where it is necessary to do so. The court must be satisfied that there is a good reason why the witness cannot or ought not to attend. A strong case must be made out.

If either party would be seriously prejudiced and suffer injustice by the denial of an opportunity for cross-examination the order is unlikely to be granted.

The court will consider

the importance of the evidence;
the difficulties and expense encountered in the witness’s attendance;
whether the witness’ evidence is likely to be disputed;
whether the credibility of the witness is in issue whether alternative witnesses may be available,
whether the absence of the witness will be fatal to one party’s case the case;
where the witness is living.

Taking the Evidence

An order for taking evidence on commission will specify a person, who may a judge, officer of a court, barrister, commissioner or other people, to take evidence on commission. The examinations is to take place in the presence of the parties or their representatives. The examination is supervised by the commissioner, whose main function is accurate to record the evidence. The examiner may put questions in order to clarify the evidence given.

The witness under commission is administered an oath or affirmation. The witness is cross-examined and re-examined in the same manner as in court proceedings. The examiner may not rule of the admissibility of questions. He may not compel answers. Such issues, if they arise are to be referred for decision by the court. On completion of the evidence, the commissioner reads the evidence in written form and the witness signs it. It is then filed in the Central Office.

Evidence on commission may be admitted by the court, on such terms as the court allows. Evidence may not be given without the consent of the party against whom it is offered unless the court is satisfied that

the person giving the evidence is dead
beyond the jurisdiction of the court or
unable from sickness or other infirmities to attend.

In this case, the disposition is admissible. Parties may make objections on the basis that the evidence offered inadmissible in itself, the commissioner having no power in that regard.

Affidavit Evidence

Evidence is taken on affidavit in a wide range of proceedings. Most pre-trial applications are determined on affidavit evidence. Proceedings by Special Summons, Summary Summons and Petitions often proceed principally or exclusively on affidavit evidence.

The format of an affidavit is prescribed by the court rules. The court has the discretion to admit an affidavit, notwithstanding non-compliance with prescribed formalities. It must be sworn by the person who makes it (the deponent) before a commissioner, practising solicitor or peace commissioner. It must be filed in court.

The affidavit should state the basis of the maker’s knowledge. Where the facts are not within the person\’s first-hand knowledge, this should be stated. Affidavits, as evidence, must deal with matters of fact and not argument.

Documents may be referred to in affidavits and exhibited. They are generally labelled consecutively, signed by the deponent and the commissioner etc. as exhibits.

Cross-Examining the Deponent

In certain types of proceedings, where evidence may be given by affidavit, an opposing party may apply to cross-examine the deponent on the contents of his affidavit. A notice is served, which requires the production of the person for cross-examination. The procedure depends on the rules applicable to the type of proceedings. A court order giving consent to cross-examine may or may not be necessary.

In summary summons or special summons proceedings, a party may serve a notice to cross-examine a person who made the affidavit. If the person is not produced for cross-examination, the affidavit is not admissible.

In other forms of proceedings including pre-trial applications, the consent of court is required for service of leave to cross-examine a person on his affidavit.

Formal Admissions

The parties to proceedings may admit the truth of matters, by not denying them. A party may call upon the other party before trial, to admit particular documents or facts in order to save time and expense in proving matters, which are not seriously in dispute. There is a procedure for calling for the admission of documents and for admission of facts.

A person who is served with notice to admit documents, who unreasonably refuses or neglects to admit the truth or authenticity of a document, he may be charged with the cost of their proof, regardless of the result of the proceedings. The document called to be proved may be originals or a copy. The admission relates to the authenticity of the document and the procedure is designed to save time in proving it as a true copy. Its admissibility and contents may be challenged.

The Taxing Master may determine that a refusal to admit a document was unreasonable and that the costs occasioned by its proof, should be borne by the party to whom the notice was addressed, irrespective of whether he succeeds in the proceedings or otherwise.

The notice to admit facts has a broadly similar purpose. It is required to be served at least nine days before the trial. Similar considerations arise in relation to the costs, where a party fail or neglects to admit facts.

If sufficient facts are proved to justify a judgment an application may be made for judgment on the basis of the facts as admitted in the pleadings and in response to notices to admit.

Trial on Point of Law

In some cases, there is no dispute about the facts. The case may raise an issue of law only. In other cases, a preliminary issue of law may arise, which it is necessary to determine before the trial can proceed. By order of the court or with the consent of the parties, a point of law may be set down for hearing and determination. The procedure may in effect be used to try a pure point of law. The courts are reluctant to adopt the procedure, other than exceptionally.

If it appears to the court that it is appropriate to determine a point of law, before evidence is heard on any issue, it may direct the question to be raised for the opinion of the court, either by special case or in such other manner as it decides. Other proceedings can be stayed or postponed pending the determination.

The facts must be agreed in order for the court to decide on a point of law in this manner. The defendant may agree to accept the statement of claim and other pleadings, for the purpose of a trial of a point of law.

The court may decide that the decision of law determines the point, in which event it may be deemed the final order in the case. In such case, the court may dismiss or uphold the claim, on such terms as it determines. The preliminary determination of the point of law may be efficient in terms of time and cost.

Trial of Issues

The rules of court allow for trials of an issue of fact without pleadings, where the determination of the rights of the parties depends on the determination of distinct issues of facts. The parties may agree the questions of fact to be decided, and after the issue of a summons, they may proceed to the trial of the fact without pleading.

The court, by prior consent, may order that on the questions being determined and answered a sum of money fixed by the parties are to be determined, is to be paid by one of the parties to the other, in accordance with the decision, .with or without the costs.

The questions for decision are set out in an issue form. If the questions in the issue form dispose of the matter, then the appropriate party may apply for judgment.

Case Stated

Rules of court allow for a special case stated, where the opinion of the court is sought on questions of law arising from facts or documents. The parties to any matter may agree on the questions of law in the form of a special case for the opinion of the court. The preliminary issue of law may be tried in this manner.

The case is set out and filed in a specified manner and signed by the parties. The parties may enter the case for argument by means of a special procedure. The parties may enter an agreement in writing that on judgment being given on the question, a sum of money agreed or to be determined by the court, is to be payable together with or without costs.