Categories
Debt Problems | Bankruptcy

The Right to Cross Examine in Debt Cases is Not Absolute

In debt collection cases in the High Court evidence of the debt is adduced by affidavit-that is, a sworn statement by the creditor who claims the money is due. This affidavit will set out the facts of the debt, how it arose and will state that in the belief of the deponent there is no defence to the action.

The debtor then replies, also by affidavit.

The relevant High Court rules are set out in Orders 37 (summary summons procedure) and 38 (special summons procedure) in the Rules of the Superior Courts.

These rules also provide, however, that the debtor can serve a notice to cross examine the deponent of the creditor’s affidavit. To do this he must serve a notice to cross-examine.

If the deponent is not produced for cross-examination his evidence may not be relied on in Court, unless by special leave of the Master of the High Court or the High Court.

Debtors have been known to use this device to try to delay creditors in obtaining judgment against them and to increase creditor’s costs.

But this right to cross-examine is not absolute and Judges of the High Court are experienced enough to recognise when such a request to cross examine is for tactical reasons and to stymie and delay.

The right to cross-examine

The principles surrounding this right to cross-examine were reviewed in an April 2019 decision The Governor and Company of Bank of Ireland v Ward, [2019] IEHC 235. The Judge in this case ruled against the debtor’s application to cross-examine and held

12.          It is clear that in the exercise of its discretion in an application to permit cross examination on the contents of an affidavit, the court must be satisfied that there is a conflict of fact or evidence and that the resolution of that conflict is necessary to dispose of the issues which the court has to determine. Apart from repeating the wording of the rules of court and his interpretation thereof, no particular fact or piece of evidence sworn to by the deponents Mr. Buckley and Ms. Enright is contested.

Reliance was placed upon Irish Bank Resolution Corporation Limited (in special liquidation) and ors v. Sean Quinn and ors [2015] IEHC 134 in looking at the right to cross-examine and paragraph 10 of that judgment stated:

“The test for cross-examination of a witness on an affidavit is set out in the Director of Corporate Enforcement v. Seymour [2006] IEHC 369. In that case O’Donovan J. stated at page 5:

“In my view, it is axiomatic that, when, in the course of applications to the court which are required to be heard and determined on affidavit, as is the situation in this case, it becomes apparent from the affidavit sworn in those proceedings that there are material conflicts of fact between the deponents of those affidavits, the court must, if requested to do so, consider whether or not to direct a plenary hearing of the proceedings or that one or more of the deponents should be cross-examined on his or her affidavit. This is so because it is impossible for a judge to resolve a material conflict of fact disclosed in affidavit. However, while it seems to me, that where it is debatable as to whether or not the cross-examination of a deponent on his or her affidavit is either necessary or desirable, the court should tend towards permitting the cross-examination, at the end of the day it is within the discretion of the court as to whether such a cross-examination should be directed and that discretion should only be exercised in favour of such cross-examination if the court considers that it is necessary for the purpose of disposing of the issues which the court has to determine. That appears to me to be the import of a statement of Keane C.J. in the course of an unreported judgment of the Supreme Court delivered on the 15th December, 2003, in a case of Holland v. the Information Commissioner and represents the current jurisprudence in that behalf in this country.”

In essence, the right to cross-examine will only arise where there is a conflict of facts or evidence between the parties and that conflict must be resolved and Mr. Ward, the debtor in Governor and Company of Bank of Ireland v Ward, [2019] IEHC 235, had failed in his own affidavit to contest any fact or evidence in the creditor’s affidavit.

For this reason, his application to cross-examine the deponent of the creditor’s affidavit was refused.

Categories
District Court Litigation Personal Injury Claims

Evidence in Civil Legal Actions-What You Need to Know

evidence-civil-actions

Evidence comprises facts in issue which are relevant and admissible in a Court or tribunal which tend to strengthen or weakens a party’s ability to discharge his burden of proof.

The standard of proof in a civil case is on the balance of probability; in a criminal case it is beyond all reasonable doubt.

Types of evidence

  • Direct evidence-sworn testimony of a witness
  • Primary evidence-for example, an original document
  • Secondary evidence-for example, a copy of an original document
  • Real evidence-material object produced in court for inspection
  • Circumstantial evidence-evidence of relevant facts from which the existence or non-existence of a fact may be inferred.

Burden of proof

There are 2 types of burden of proof:

  1. Legal burden. This burden is borne by the person asserting a fact and in a civil case the standard is on the balance of probability.
  2. Evidential burden of proof. This is the burden to show sufficient facts to persuade a judge to make a favourable finding.

How is evidence adduced?

Normally orally, and on oath, in open court. (See Order 39, Rules of the Superior Courts or Order 23 of the Circuit Court rules or Order 8 of the District Court rules).

Proceedings by special or summary summons may be heard on affidavit, however. A Court may also allow this in certain limited circumstances.

Facts must be admissible and relevant

Not all facts are admissible and Hearsay evidence is excluded. A witness can only prove a fact on the basis of what they saw or did, not what they were told by someone else.

The same rule applies to a written assertion.

Also, the Best evidence rule means that the best evidence-for example, an original of a document-should be produced.

Certain facts may also be excluded on the basis of privilege, for example

  • solicitor/client privilege,
  • the privilege against self incrimination
  • without prejudice communications
  • opinion evidence
  • leading questions

Presumption in civil actions

A presumption is an assumption which must be made until evidence to the contrary is adduced.

Common presumptions in civil legal cases are

  • res ipsa loquitur (the facts speaks for themselves). This doctrine is rebuttable.
  • Judicial notice-certain facts are so notorious as to not require evidence to prove them eg Dublin is the capital of Ireland, the sun sets in the west.

Formal admissions in a civil trial need not be proved eg where the parties agree on the special damages in the case.

Statutory change to the law of evidence

You will see from the personal injuries article that disclosure in personal injury actions is provided for in statutory instrument 391/98. This makes a slight change to the law of evidence as it makes rules for the admission of evidence, exchange of reports, documents etc.,

But the burden of proof has not been changed in any way and each party must prove its case.

Section 26 of the Civil Liability and Courts act 2004 provides for penalties for anyone giving false or misleading evidence in personal injuries actions.

Notice to Admit

The expense of running a trial is reduced somewhat by the Notice to Admit procedure. This provides for 2 types of notice: notice to admit facts and notice to admit documents.

Either party may call on the other to admit facts or documents, and a refusal to do so will mean the cost of proving any such document will be borne by the party refusing, unless the Court later rules that it was reasonable to do so.

Affidavit evidence

Affidavit evidence is a witness’s sworn evidence in writing. It must comply with the rules of evidence, that is the facts sworn must be relevant and admissible. The deponent of the affidavit can be called to give evidence in open court by the other side. When the affidavit refers to a document the document must be exhibited. Also, direct speech must be used and hearsay and opinion evidence (except in certain exceptional circumstances) is not permissible.

Evidence at trial

Evidence at trial must normally be given orally, and the witness must be competent and compellable. To be competent a witness must understand the nature of giving an oath and giving evidence.

Evidence given by a witness can be examined under 3 headings:

  1. examination in chief. This is evidence from a witness whose evidence will support your case, from a helpful witness who you have called. Leading questions may not be used, except in relation to facts which are not in dispute. A witness may refresh their memory in Court by referring to a document that the witness has made, provided certain conditions are met. A witness that you call to support your case cannot be cross-examined unless they become a hostile witness, that is give evidence contrary to that expected. If the Judge agrees that they are now a hostile witness, they can be cross examined.
  2. Cross examination. Any party can cross examine a witness not called by them.

The objectives of cross examination are

  1. to impugn the credibility of the witness
  2. to challenge every part of the witness’s statement that is in conflict with your case. If you fail to challenge the evidence, then you will be held to have accepted it and not be able to call a witness later to contradict it.

Leading questions are a vital part of cross examination, and you must put your version of events to the witness.

Any prior inconsistent statements to the oral evidence given at the hearing should also be put to a witness in cross examination.

  1. Re-examination

This is where you will re-examine your own witness after he/she has been cross-examined. Questions should be confined to matters arising from the cross examination, and new matters should not be introduced or attempts to remedy defects from examination in chief.

Destructive cross examination

When you are using destructive cross examination to challenge the evidence of a witness against your case you need to be aware of the rules of evidence. You can use these rules to impeach a witness by looking at the following 2 categories, and dividing them down into sub categories:

  1. competence
  2. credibility

Competence-is the witness eligible to take the stand?

a) can he take the oath-does he understand what it means?

b) perception-the witness must have perception-he must have been capable of perceiving and noticing things

c) memory-does he have memory/recollection?

d) communication-can he communicate what he saw?

 Credibility

a) does the witness have bias/prejudice/corruption?

b) has he a previous conviction?

c) has he engaged in prior bad acts, short of convictions?

d)has he given prior inconsistent statements?