Witnesses

The law of evidence in Northern Ireland closely resembles that in England. Like English law, it has been updated more extensively than that applicable in the Republic of Ireland.

Either party to legal proceedings can compel a witness to attend court by witness summons. Witnesses may be compelled to produce any document in their possession or control at the hearing. Failure to comply with a witness summons constitutes contempt of court.

The summons or subpoena must be served on a witness. A subpoena issues from the Court office or, in cases requiring service outside Northern Ireland, by the Court itself. However, a subpoena cannot be served outside of the United Kingdom. Witnesses cannot claim privilege until asked questions in the witness box.

When a witness is outside of the United Kingdom, the only method to obtain evidence is by applying to the County Court or High Court for an Order to take evidence by an examiner abroad.

Evidence may be asked of a witness and received if it is relevant to the matters in dispute and is not subject to any rules that prevent it from being considered i.e., inadmissible.

A person is deemed to admit the truth of any statement adverse to their interests. An admission may refer to something contemporaneous with the transaction in dispute or made in court. In legal proceedings, parties can call upon each other to admit certain matters not seriously contested. Failure to do so may result in liability for the costs of proving the facts, unless the Judge decides otherwise.

Generally, individuals only give evidence of matters within their direct observable knowledge. They may not offer opinions or evidence of their state of mind or knowledge unless directly relevant or a matter of public or family reputation, such as pedigree or expert opinions. Only in limited categories, an expert in the field may give opinion evidence, having first proven their expertise.

The burden of proof generally lies with the person making the claim. They must demonstrate, on the balance of probabilities, that their version of events and facts is more likely to be true than the opponent’s. The claimant or plaintiff must prove all matters necessary to their claim, such as compensation or a court order.

Certain facts are matters of common knowledge, which a Judge will recognize without requiring proof. The law itself need not be proven.

Certain matters are presumed to be true in the absence of proof to the contrary. Statutes may establish particular presumptions, placing the onus on one party to prove otherwise.

Evidence is typically given on sworn oath to the Court by witnesses. Real evidence or documents can also be admitted, provided their authenticity is first proved.

In Chancery matters where disputes may hinge on document interpretation or matters of law, evidence is given by written sworn affidavit. Judges may request matters be proved by affidavit at any time. However, this will not be accepted if the person can be produced and cross-examined. There’s a strong presumption that a person is entitled to cross-examine deponent witnesses.

Prior notice of intention to use an affidavit must be given to the other side. It may be used unless the opponent objects or the Judge orders otherwise. If the opponent objects, an application may be made to the Judge to have the affidavit evidence-only heard.

Generally, any person can be compelled to attend court proceedings if they have relevant evidence. They can be required to answer lawfully put questions. However, there are privileges. Children who understand their obligations, speak the truth, may give unsworn testimony.

Certain limited categories of people need not attend and cannot be compelled to give evidence. Also, certain documents and matters are privileged from being disclosed.

• Information between a solicitor or legal adviser for the purpose of obtaining legal advice and assistance.
• Communications in connection with pending or contemplated litigation, including confidential communications between lawyer and client.
• Confidential communications between the solicitor or agent or other persons and confidential communications between the client and non-legal person.

Communications expressed without prejudice are not admissible as proof of an admission to promote free discussion in settlement.

A person is not obliged to answer a question or produce a document that could expose them or their spouse to criminal penalty in any part of the United Kingdom. There are exceptions, such as Crown or State refusal to produce documents or evidence in the public interest. Other privileges are laid down in legislation.

Parties to legal proceedings generally decide which witnesses to call and in what order, usually in a logical sequence.

Individuals calling a witness may not ask them legal questions. Witnesses typically appear in public, though they may be screened under specific circumstances. Leading questions cannot be asked of one’s own witnesses, assuming particular unproven facts or allowing only a yes or no answer.

Witnesses can authenticate documents by producing them and vouching for their authenticity.

Witnesses may refresh their memory by looking at notes prepared contemporaneous with or shortly after the relevant incident. Under revised legislation, evidence documents used to refresh memory can become evidence of the truth if the Court permits rebuttal or cross-examination on parts not used to refresh memory.

Generally, a person cannot cross-examine their own witness or undermine their credibility unless they are treated as a hostile witness. This involves asking the witness to reconsider an answer in light of previous statements and applying to the Court for leave to cross-examine as hostile.

The opposing party’s legal representative has the right to cross-examine. This cross-examination need not be limited to matters raised in the initial evidence. However, questions must not be vexatious or irrelevant.