#10329 - Proving Documentary And Real Evidence - BPC Civil Litigation

PROVING DOCUMENTARY AND REAL EVIDENCE

DOCUMENTARY EVIDENCE

• definition - anything that's recorded

• proof of contents

  • Civil Evidence Act 1995

    • general rule: documents can be proved by the original / an authenticated copy (s8)

    • business document certificates (s9)

      • business (whether or not for profit) + public authority records may be received in evidence without further proof

        • document taken to be a record if

1. certificate signed by officer of business / authority produced to court (s9(2)); and

2. hearsay notice served (see SGS 12)

   • common law

     • general rule = need primary evidence BUT = discretionary approach to admissibility of secondary evidence (Springsteen v Flute)

       • (1) if party can easily adduce original, court likely to refuse to admit (secondary evidence = worthless)

       • (2) if party genuinely cannot produce original, court will admit + attach appropriate weight

       • if falls between (1) and (2), court decides in circumstances of case what weight to attach

     • exceptions (where secondary evidence admissible)

     1. hearsay statements admissible by statute

     2. failure to produce after notice to produce served (CPR makes no formal provision for this notice)

     3. stranger's lawful refusal to produce after being summoned as witness e.g. privilege, diplomatic immunity

     4. documents proven to be lost / destroyed

     5. physical impossibility e.g. inscribed on tombstone

     6. public documents e.g. Queen's Printer's copy of Act of Parlt, hansard, SIs

     7. bankers' books

1. records of financial transactions, proved by oral evidence / affidavit of bank official

2. any party can apply to inspect + take copies, but need very strong grounds contains evidence against other party

   • if admissible what form can secondary evidence take?

     • private documents - secondary evidence can be: a true copy + proof = true copy / copy of a copy / oral evidence (no hierarchy within this)

• proof of due execution

  • private documents (NOT public documents, which are exempt) only admissible on proof of due execution i.e. authenticity:

    • proof (usually unnecessary)

      • proof of handwriting / signature by direct oral evidence / person familiar with person's handwriting / comparison to document proven to be by person; +

      • (sometimes) proof of attestation i.e. due execution e.g. wills

    • admitted / presumed (usual)

      • parties deemed to admit authenticity - see r32.19 below

      • proof of due execution NOT required if opponent refuses to comply with notice to produce document

      • documents presumed to be made on date they bear

  • stamped documents (stamp duty) document requiring stamp inadmissible if not stamped

• CPR

  • exhibits to witness statements and affidavits

    • usually photocopies

    • must bring originals to court for inspection by judge at hearing (PD 32 para 13.1)

  • documents in possession of a witness

    • if document in possession of non- party, person = witness may be compelled under witness summons to attend court at trial with document

    • remedy for failure for appeal: punish witness for disobeying summons + claim damages

  • authenticity of disclosed documents

    • parties deemed to admit authenticity of documents disclosed to them

    • if wish to challenge, must serve notice to prove, which must specify documents being challenged + be served by latest date for serving witness statements OR within 7 days of disclosure (whichever is later) (r32.19)

  • trial bundles

    • court may direct parties to use best endeavours to agree bundles to be used at hearing (PD 32 para 27.2)

    • agreed bundles = admissible as evidence of their contents (unless court otherwise / party has given written notice of objection to admissibility (PD 32 para 27.2)

    • should make originals of trial bundle documents available at trial (PD 39A para 3.3)

Real...