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When a claim is brought to a court hearing
the judges must make a decision based on the evidence presented to them. The
quality of the evidence can have a significant influence on the outcome of the
claim and Claimants should be especially diligent in assembling evidence.
Most importantly, evidence should be accurate and truthful. Original
documents should be taken to court but copies can be submitted prior to the
hearing. Do not alter any documents or statements or leave out pages which you
think may have an adverse effect. Do not forget that the other side may well
have their own originals of the same document and the judge will not be pleased
to see false evidence.
Prior to the hearing you will need to forward
copies of all documents which you intend to use at the hearing to the other
side and the court. If you need to present evidence to the court which you have
not declared prior to the hearing you will need to obtain permission from the
judge. Depending on the circumstances this could be refused.
Evidence
can be classified as follows:
Invoices and bills are usually
presented to support claims for overcharging, remedial work or replacements. If
the work has been completed final invoices should be evidenced. If work has not
been completed interim invoices, estimates and/or pro-forma invoices can be
evidenced.
If the claim is for work yet to be carried out, it is
advisable to produce three independent estimates for the work. Where remedial
work is required to correct poor workmanship it is advisable to obtain a
specialist report as detailed below.
The golden rule is to keep every piece
of paper. During a dispute most people become involved in detailed
correspondence in an attempt to settle a disputed matter. It is always
advisable to give the other side the opportunity to propose remedy prior to
taking legal action. This correspondence can be an essential element in the
conduct of the claim and all copies should be carefully retained.
When
corresponding with the other side exercise caution if heading correspondence
"Without Prejudice". People often use this without realising exactly what it
means. If in doubt - do not use it!
Important correspondence should be
forwarded by recorded delivery and the receipt confirmed - this can be done on
line at http://www.royalmail.com and the receipt printed. Emails are now
admissible but try to get a receipt for confirmation. Faxes are still widely
used and are certainly acceptable in court - although most people send by fax
and post - just to make sure.
With the proliferation of digital
photography photographic evident has become much easier to obtain. Where a
claim is for the cost of remedial work to property, motor vehicles and other
objects which have suffered damage photographs can be very useful in
demonstrating the damage to the court.
The only problem with digital
photographs is that they can be easily re-touched and shrewd Defendants will
point this out to the judge. However, conventional photographs do not have this
problem as the authenticity can be justified by producing the negatives.
If photographs are to be produced make sure that they are in focus, not
under or over exposed and relevant to the claim.
Video evidence is
being increasingly accepted as evidence in court. If it is your intention to
rely on this make sure that you request the courts permission when you submit
your Allocation
Questionnaire.
In some circumstances specialist
reports are essential. For motor accident claims an automotive engineers report
is essential for larger claims. As most motor claims will ultimately be settled
by the Defendant's insurers it is advisable to inform the insurer that you
intend to obtain a report unless they are prepared to initiate their own
report. The cost of the report is added to the claim and will be refunded to
the Claimant on a successful conclusion.
For property damage claims a
surveyors report is advisable. This will justify the cost of the remedial work
and also the necessity for the work to be carried out.
Witness statements are a very useful
form of evidence. Where road traffic accidents have occurred, property damage,
negligence or incompetent workmanship have occurred witness statements can
justify the claim.
Statements should be relevant and the witness
should be fully identified with a name and address some background information
indicating how the witness came to be in a position to to make such a
statement.
The Claimant must also produce a statement, detailing the
evident which they intend to present at court and qualifying other evidence
such as documents and reports. The Claimant's statement should form part of a
document bundle and refer to each document in the bundle.
All witness
statements should include a Statement
of Truth.
If you intend to take a witness or
witnesses to court you must inform the court on the
Allocation Questionnaire. If
your witness is a lay person they will be a "witness of fact". However, it may
be necessary to use an "expert witness" who has special skills or knowledge
relevant to the claim.
Witnesses should have produced a statement with
details as above and be provided with full details of the time and place of the
court hearing and details of the claim.
Witnesses should be provided
with details about the conduct of court hearings and what is expected of them.
Our page dealing with Appearing In Court
explains the procedures and possible problem areas. It is a good idea to make
sure that ant witness is fully briefed and knows exactly what to expect at the
hearing.
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