Elspeth Horner – Partner

PROVING THE CASE:Evidence for Court

Outline

• Elements of a dispute

• Clean file keeping/documentation

• Discovery obligations

• Providing evidence (fact/expert opinion)

• Preparing for being a witness

• What to expect when called as a witness

Elements of a Dispute

• Backwards looking: • What has gone wrong?• Why?• How can it be proved?

• Balance of probabilities: Which party’s version of events is inherently more likely?

• Resolution options:• Settlement (negotiation)• ISO• ADR• Court

Clean File Keeping

• Presume all documents will be seen by third party eyes

• Develop inhouse protocols for:• communications• storage/filing

• Embarrassment factor/reputation

• When issue becomes contentious: privilege claims/settlement offers

Discovery

• Litigation principle: No surprises at hearing

• Discovery obligations:• Tailored/full• Privileged/open• Guidance re search for records• Affidavit re documents disclosed

• Inspection

Providing Evidence

• Fact witness: What has happened

• Expert witness: What is your opinion about what has happened (or hypothetical scenario):

• Eg: Is a misstatement in a life insurance proposal material (s4 Insurance Law Reform Act 1977)

• Expert witnesses are subject to a Code of Conduct contained in the High Court Rules

Providing Evidence – Expert Evidence• The High Court Rules Code of Conduct for Expert Witnesses include the

following requirements:

• Expert witness has an overriding duty to assist the court impartially on relevant matters within the expert’s area of expertise

• Expert witness is not an advocate for the party who engages the witness

• Qualify basis for opinion – any insufficient information

• Essentially: exercise independent and professional judgment

Tips for underwriter’s evidence

• Obtain clear brief: What is the question?• Prepare own opinion/evidence (review High Court Code)• Check provided everything the original underwriter had available

to them – do not speculate• Is the cover part of a bundled package• What did the insured know?• Provide opinion on each separate failure to disclose/misstatement• Review and use the reinsurance guidelines available at time of

original consideration• Precision

Tips for underwriter’s evidence

• Pan Atlantic Insurance Company Ltd v Pine Top Insurance Company - disclosure re claims history:• Original underwriter should review and give evidence:• what induced them to write the particular risk• had they known the true facts at the time would they have declined

to offer terms; or• if altered terms would have been offered, what would those terms

have been • Disclosure and inspection of underwriting files relevant re similar

risks – what would the underwriter have done if true facts known?

• Contemporaneous records of an underwriter’s reasons vital evidence

Preparing for being a witness

• Amat Victoria Curam: Victory loves preparation

• Guidance by counsel, if not ask:• Copy of Claim/Defence• ALL other witnesses briefs • Bundle of Documents• Cross examination practice/preparation• If expert witness: Intel on other expert witnesses and their evidence

Preparing for being a witness

• Cross examination:

• Understand purpose• Weaknesses• How to respond to strategies/techniques• KEEP CALM

• Basics: when/where/what order/contact

• Familiarise yourself with Court

What to expect as a witness

• Sworn in as witness – witness box (Court)

• Usually required to read Brief of Evidence, then:• Clarification questions from counsel leading your evidence• Cross examination• Re-examination questions from counsel• Questions from the Judge• Adjournment while giving evidence: can’t speak with party/counsel for

whom you are appearing

• Expect focus on minutae

Conclusion

• Preparation: Precision: Practice

• What learnings can be identified/adopted

• What was the outcome: read the judgment

• Get it right: Appropriate support from counsel