#19715 - 19. Bpc Civil Litigation 2023 2024 Trial Evidence, Hearsay And Evidence Of Fact - BPC Civil Litigation

Pursuant to s. 1(2) CEA 1995 “hearsay” means “a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated.”

“Statement” means a representation of fact or opinion, however made.” s. 13 CEA 1995

A representation can, therefore, be oral or written or made by conduct (see also “implied assertions,” below).

S. 11 CEA 1995 states that civil proceedings “means civil proceedings, before any tribunal, in relation to which the strict rules of evidence apply.”

CPR r. 33.3 further states that the duty to give notice of intention to rely on hearsay evidence (see further, below) does not apply inter alia

• to evidence at hearings other than trials

• where the requirement is excluded by a practice direction.

The provisions of the CEA 1995 do not apply, therefore, to claims proceeding on the small claims track; in addition, there is no duty to give notice of intention to rely on hearsay evidence in respect of an interim application.

Whether a statement amounts to hearsay can be a matter for legal argument. Section 1(2) CEA 1995 requires that one looks at the purpose for which the statement is being tendered:

If the statement is being tendered as evidence of the matters stated (i.e. to prove the truth of its contents) it is hearsay evidence; if it is being tendered for some other purpose (albeit relevant to the facts in issue) it is “original evidence”. Examples of the latter include (i) a statement tendered as evidence that a person can speak or write and (ii) a statement tendered as evidence of a person’s state of mind.

Pursuant to s. 2 CEA 1995, a party proposing to adduce hearsay evidence

“shall …. give to the other party or parties … such notice … as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from it being hearsay.”

CPR r. 33.2 sets out the procedural requirements, which differ according to the circumstances of the case:

(1) where a party intends to rely on hearsay evidence and the evidence is to be given by a person giving oral evidence (i.e. who is being called), notice is given simply by serving a copy of the witness’ witness statement in accordance with the court’s order;

2. where a party intends to rely on hearsay evidence and the evidence is contained in a witness statement of a person who is not being called to give oral evidence, the party must serve a copy of the witness statement as above but must also:

(a) inform the other parties that the witness is not being called and

(b) give the reason why the witness will not be called;

3. in all other cases, the party intending to rely on hearsay evidence must serve a notice on the other parties which:

1. identifies the hearsay evidence;

2. states that the party serving the notice proposes to rely on the hearsay evidence and

3. gives the reason why the witness will not be called.

The notice must be served no later than the latest date for serving witness statements and where the hearsay evidence is contained in a document, a copy of the document must be supplied.

Note that there is no prescribed form for such a “hearsay notice.”

Hearsay evidence will be inadmissible if it consists of, or is to be proved by, a statement made by a person who, at the time he made the statement, was not competent as a witness: see s. 5 CEA 1995. Section 5 refers specifically to mental or physical infirmity or lack of understanding; however, a child who does not understand the nature of an oath but who satisfies the requirements of s. 96(2) Children Act 1989 is treated as competent and permitted to give evidence unsworn. The requirements are that the child:

• understands that it is his duty to speak the truth and

• has sufficient understanding to justify his evidence being heard.

Other hearsay evidence which is otherwise inadmissible includes, for example, inadmissible opinion evidence.

Where a party is put on notice that hearsay evidence will be relied upon, a number of options are available:

• pursuant to s. 2(1)(b) CEA 1995 the party may request particulars of or relating to the evidence;

• where the party relying on the evidence does not propose to call the party who made the original statement, any other party may apply to cross-examine the maker on the contents of the statement. Any such application must be made not more than 14 days after the day on which notice of intention to rely on the hearsay evidence was served on the applicant: see CPR r. 33.4;

• where the party relying on the evidence does not propose to call the party who made the original statement, any other party may call evidence to attack the maker’s credibility; no application is required, however, notice of intention to attack credibility must be given (again, not more than 14 days after the day on which notice of intention to rely on the hearsay evidence was served): see CPR r. 33.5;

• a party may simply make submissions in respect of the weight to be attached to the evidence.

Factors which the court will take into account when evaluating what weight it will attach to hearsay evidence which has been adduced are:

Any circumstances from which any inference can be drawn as to the reliability or otherwise of the evidence e.g

• Would it have been reasonable to have produced the maker of the statement as a W? (if a party adduces the statement rather than calls the W, relatively little weight will be attached)

• Whether the original statement was contemporaneous with the occurrence/existence of the matter stated

• Whether the evidence is multiple hearsay (see s 1(2)(b) for the definition of multiple hearsay)

• Whether any person involved had any motive to conceal/misrepresent the facts

• Whether the original statement was an edited account or was made in collaboration with another or for a particular purpose

• Whether the circumstances in which the evidence is adduced suggest an attempt to prevent proper evaluation of its weigh

The purpose of CPR 33.6 is to give the other parties the chance to inspect any plan, model or photograph that another party intends to produce at trial – usually to allow them to assess its accuracy or veracity. The ultimate aim of the rule is to ensure that wherever possible disputes about the legitimacy of the evidence are resolved before trial. Again, this rule does not apply on the Small Claims Track – parties will usually attend trial bringing with them a wealth of plans and photographs which are disputed. In these cases, judges need to exercise their discretion in deciding which to take into account when deciding the case.

CPR 33.6

(1) This rule applies to evidence (such as a plan, photograph or model) which is not-

(a) contained in a witness statement, affidavit or expert's report;

(b) to be given orally at trial; or

(c) evidence of which prior notice must be given under rule 33.2.

(2) This rule includes documents which may be received in evidence without further proof under section 9 of the Civil Evidence Act 1995.

(3) Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule.

(4) Where the party intends to use the evidence as evidence of any fact then, except where paragraph (6) applies, he must give notice not later than the latest date for serving witness statements.

(5) He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if-

(a) there are not to be witness statements; or

(b) he intends to put in the evidence solely in order to disprove an allegation made in a witness statement.

(6) Where the evidence forms part of expert evidence, he must give notice when the expert's report is served on the other party.

(7) Where the evidence is being produced to the court for any reason other than as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.

(8) Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.