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