Disclosure, Evidence, and Witnesses
What the exam tests
Disclosure, Evidence and Witnesses tests the scope of disclosure, privilege, witness statements, expert evidence and the burden of proof at trial.
Core rules
- Disclosure covers documents in a party’s possession, custody or power that are relevant and material, including adverse documents. The duty continues until trial.
- Legal professional privilege protects confidential communications for legal advice and litigation. Without prejudice communications are inadmissible on liability but may be used on costs. The privilege against self-incrimination is available to natural persons, though its scope for corporate entities is limited.
- Witness statements usually stand as evidence-in-chief; late statements need permission. Experts must be independent and their evidence is admitted only with permission; the duty is to the court, not the instructing party.
- Hearsay is generally inadmissible unless a statutory exception applies, so check the applicable evidence statute rather than assuming admissibility. The burden is on the party asserting a fact; the standard is the balance of probabilities.
- The court may draw an adverse inference from withholding a relevant document or failing to call a witness.
Worked example
In a construction dispute, the defendant refuses to disclose board minutes recording a decision to delay payment. It claims privilege. The court inspects the minutes. If the dominant purpose was legal advice, privilege may apply; if the minutes record ordinary commercial discussion, it does not. Refusal to disclose can lead to an adverse inference and an unless order.
Traps
Withholding adverse documents; claiming privilege without evidence; serving a late witness statement without permission; treating an expert as an advocate; assuming hearsay is always admissible.