There are many problems in obtaining
acceptable survey evidence including the use of relevant
and unambiguous questions and whether the actual conduct
of the survey (including methodology) is satisfactory.
The admissibility of surveys
is always a matter for the trial Judge to determine but
the risk of the survey being rejected or given little,
if any, weight at the trial may be diminished if the following
procedure when a party seeks to have a survey conducted.
Subject to other directions of the Court in the particular
case, the Court expects that this practice will usually
be followed:
1. Notice should be given in
writing by the party seeking to have the survey conducted
to the other parties to the proceeding.
2. The notice should give an
outline of :
a. the purpose of the proposed
survey; b. the issue to which it is
to be directed; c. the proposed form and methodology;
d. the particular questions
that will be asked; e. the introductory statements
or instructions that will be given to the persons
conducting the survey; f. other controls to be used
in the interrogation process.
3. The parties should attempt
to resolve any disagreement concerning the manner in
which the survey is to be conducted and any of the matters
mentioned in 2 above.
4. The matter of the survey
should be raised with the Court at the directions hearing
as soon as possible after the steps mentioned above
have been taken.
