#13782 - Statements Hearsay And Evidence - BPC Civil Litigation

Statements, Hearsay & Opinion

Power of Court on Evidence

r32.1 - Court has power to control evidence by giving directions on:

• Issues;

• Nature of evidence required;

• Way in which evidence is admitted;

• Exclude otherwise admissible evidence.

  • O'Brien v CC of SW Police - The test for admissibility of bad character is:

    1. (I) Relevance (probative of an issue in the case - THE ADDITIONAL RULES IN CRIMINAL PROCEDURE DO NOT APPLY IN CIVIL CASES); ADMISSIBLE

    2. (ii) Are there good grounds why a court should decline to admit it in the exercise of its case management powers?

  • Judge must exercise this power compatibly with OO.

• Limit XX.

r32.1 - The court may strike out evidence which is "Scandalous, irrelevant or oppressive".

Types of Written Evidence

There are six types of written evidence:

Statements of Truth

• r22.1 - The following documents must be verified by statement of truth:

  • SoC; (Including Replies to DS) - As this can be used as EiC in lieu of calling W.

  • Reponses Complying with r18 request for Further Information;

  • WS;

  • AoS in claim begun under Pt 8 procedure (different Role in Pt 8 than otherwise);

  • Certificate stating reasons for bringing possession/LL/T claim in HC;

  • Certificate of Service; (Solicitor in personal capacity, rather than on behalf of client) and

  • Any other doc required by rule/PD

    1. Expert's Report - PD22, PD35(2.3)

    2. Schedule of Past & Future Expenses & Losses

    3. Counter Schedule ^^

    4. Amendments to the Above.

  • COSTS BUDGET (signed by senior legal rep), but not other costs docs other than "Schedule of Costs" for a costs capping Order.

  • RTA/EL/PL Protocol Claims

  • Amendments to SoC - unless court orders otherwise.

  • AN (if relied on as evidence)

• If proceedings brought by litigation friend, it is the LF's statement of truth - r22.1(5).

• r22.1(6) - It must be signed by:

  • Party or litigation friend or

  • Legal representative of party/LF

  • In the case of WS, the maker of the Statement.

• It may be made by two parties jointly, or a person not a party (eg: TP's WS).

• A statement of truth not contained in the Doc it verifies must clearly identify the doc (r22.1(7)).

Failure to Verify SoC/WS

• r22.2 - The Soc shall remain effective unless struck out BUT it cannot be relied upon as evidence of any of the matters stated in it.

• The court may strike out an unverified SoC per r22.2(2). Any party can apply for such an order.

  • Thus, an unverified statement is not a nullity!!!

  • But there may be costs consequences per PD22(4). Costs of application!!

• r22.3 - Failure to verify WS - the court may direct it shall not be admissible in evidence. The general rule is WS is evidence in chief at hearings other than trial (r32.6) and in specific cases evidence at trial (r32.5).

  • Thus not ipso facto inadmissible by non-verification.

• r22.4 - Court has power to order document to be verified. Any party may apply for such an order.

NB: Proceedings for Contempt of Court for false statements of truth may only be brought by AG or with permission of court per r81.17-18.

Failure to SERVE WS

• W cannot be called to give evidence - 32.10.

• WS may only be used in the present proceedings - 32.12. Unless

  • W consents;

  • Court gives permission;

  • WS is put in evidence in public;

• If WS stands as EiC, it must be open for inspection r32.13. BUT

  • Party may apply for Order not to inspect if court is satisfied because of:

    1. Interests of Justice;

    2. Public Interest;

    3. Expert Medical E$vidence;

    4. Confidential Info;

    5. Protect interest of child/PP

  • Court may alternatively redact.

Form of Document:

Margin: 3.5cm

Misc: Pages numbered

Hearsay Evidence (Chr 33)

The Hearsay Rule

• DEF: s1(2) CEA 1995 - "(a) A statement made otherwise than by the a person [the author] giving oral evidence in the proceedings which is tendered as evidence of the matters stated AND (b) references to hearsay include hearsay of whatever degree."

  • "Statement" defined in s13 CEA 1995 as "any representation of fact or opinion, however made", therefore includes:

    1. Written;

    2. Oral;

    3. Conduct;

    4. Single;

    5. Multiple

  • A says he heard B say "I saw pink elephants" is hearsay to prove that B saw pink elephants but not to prove that B was drunk.

  • "Proceedings" is defined in s11 as where strict evidential rules apply as a matter of law or agreement - Thus, could apply in arbitrations etc!

• There are 6 statutory things which fall outside the definition of hearsay in s7(2)-(3):

  1. Published works of a public nature;

  2. Public documents (eg: official registers);

     1. It must have been brought into existence as a public document to be retained indefinitely. A temporary document is inadmissible. EG: In Lilley v Pettit regimental records of soldier made for benefit of Crown, and not public generally.

     2. A car registration book is inadmissible as it is private to the car owner, and no obligation to produce to public except Police Officer or Tax Officer.

     3. Birth Certificates are included - s34 BDRA 1953

  3. Records of Courts, Treaties, Pardons etc;

  4. Reputation adduced to establish good or bad character;

  5. Reputation or family tradition on a question of pedigree; and

     1. EG: Inscriptions on tombstones, in family bible;

     2. Admissibility points:

        1. First, only where pedigree is directly in issue;

        2. Second, it must have been made by a blood relative, or spouse of blood relation, and not by relations in law, servants or intimate acquaintances. There is no requirement of personal knowledge, as it may be simply family tradition or reputation.

        3. Third, The declaration must be made ante litem motam (before controversy/litigation arose over the matter)

     3. Matters of pedigree concern: relationship by blood or marriage between persons thus births, marriages, deaths, legitimacy, celibacy, failure of issue, intestecy.

     4. It can be written or oral, or by conduct (eg: parents always treat one child as illegitimate)

  6. Reputation or family tradition on the existence of a public or general right (eg: rights of way, highways, landing places on rivers), or to identify a person or thing.

Conditions of admissibility:

1. First, must be made ante litem motam;

2. Second, declaration must be as to existence of right in question, and not facts tending to support or negative that right.

2. Res Gestae (Closely linked in time, place and circumstances with some act, event or state of affairs) - Judge must ask "can the possibility of concotion or distortion be disregarded?"

• In addition, the following are admissible without further proof:

  • Ogden Tables - Admissible under s10 CEA...