HEARSAY EVIDENCE IN CIVIL PROCEEDINGS Plus Competence and Compellability (civil) Exclusionary Discretion (civil) Similar Fact Evidence (civil) Witness Statements (civil) Witness Summaries (civil) Silence (civil)

Governed by CIVIL EVIDENCE ACT 1995 and Civil Procedure Rules 1998 CIVIL HEARSAY Governed by CIVIL EVIDENCE ACT 1995 and Civil Procedure Rules 1998

Hearsay: admissibility and definitions “In civil proceedings evidence shall not be excluded on the ground that it is hearsay” (CEA 1995 s.1(1)). “‘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” (CEA 1995 s.1(2)) “…references to hearsay include hearsay of whatever degree” (CEA 1995 s.1(2)) “‘statement’ means any representation of fact or opinion, however made” (CEA 1995 s.13) “Nothing in this Act affects the exclusion of evidence on grounds other than it is hearsay.” (CEA 1995 s.14)

Admissibility and definitions (contd.) Thus, hearsay statements (whether statements of fact or opinion and whether first hand hearsay or hearsay of some other degree) will not be excluded in civil proceedings in consequence of their hearsay nature (though they may be excluded due to the operation of some other rule of evidence, e.g. if they are not relevant to an issue in the proceedings).

Admissibility and definitions (cont) Unlike the position under the CJA 2003, statements produced by machines which process data which has been inputted by humans and implied assertions can, it seems, still be hearsay statements in civil proceedings (machines because the CEA 1995 definition of statement does not say “made by a person” and implied assertions because no equivalent of CJA s.115(2) in CEA 1995). Whilst it seems that such statements/assertions may be hearsay statements in civil proceedings, remember that, in civil proceedings, the fact that they are hearsay statements will not affect their admissibility.

CEA 1995 sections 2-6 These sections only apply to hearsay evidence admissible solely under section 1. They do not apply to hearsay evidence admissible in civil proceedings under another statute or under a common law hearsay exception preserved by CEA 1995 s.7. E.g., they do not apply where hearsay evidence is admissible in civil proceedings under the Children (Admissibility of Hearsay Evidence) Order 1993 (which concerns hearsay evidence concerning the upbringing, maintenance or welfare of a child).

Notice (CEA 1995 section 2) Party should give other party(ies) such notice of the fact that he proposes to adduce hearsay evidence (and on request such particulars of or concerning the evidence) as is reasonable and practicable in the circumstances to enable them to deal with any matters arising from its hearsay nature. Parties may agree to exclude s. 2 notice requirement & party entitled to notice may waive right to notice. Failure to comply with s.2 requirements does not render hearsay evidence inadmissible but may reduce the weight of the evidence and may have adjournment/costs implications.

Notice (CPR 33.2) Where a witness is to be called to prove a hearsay statement, notice of the fact that a party proposes to adduce hearsay evidence is given for s.2 purposes by serving his witness statement by the latest day for serving witness statements; or Where a hearsay statement is to be proved by means of the witness statement of a person who is not being called, notice of the fact that a party proposes to adduce hearsay evidence is given for s.2 purposes by serving the witness statement by the latest day for serving witness statements and, at the same time, informing the other party that the witness is not to be called and giving the reason why this is so; or

Notice (CPR 33.2 (continued)) Where a hearsay statement is to be proved other than by the 2 methods referred to above the s.2 requirement of giving notice of the fact that a party proposes to adduce hearsay evidence is satisfied by serving a notice (by the latest day for serving witness statements) which identifies the evidence; states that it is proposed to rely on it at the trial; and gives the reason why the witness will not be called Where the evidence is in a document a party must be given a copy on request

Clint witnesses an accident to Anne at their workplace and tells Steve what happened. Clint is now dead and Anne, who is bringing civil proceedings against Doug, her employer, wishes to call Steve to repeat Clint’s statement. Which one is true? [a] Anne should serve Steve’s witness statement on Doug by the latest day for serving witness statements, otherwise the hearsay evidence will not be admissible. [b] Anne should serve Steve’s witness statement on Doug by the latest day for serving witness statements, otherwise the weight of the evidence may be reduced

ANSWERS [a] Anne should serve Steve’s witness statement on Doug by the latest day for serving witness statements, otherwise the hearsay evidence will not be admissible. [b] Anne should serve Steve’s witness statement on Doug by the latest day for serving witness statements, otherwise the weight of the evidence may be reduced (b) is true

Zaheer witnesses an accident to Clive at their workplace Zaheer witnesses an accident to Clive at their workplace. By the time of Clive’s civil proceedings against Fred, his employer, Zaheer is dead, but Clive has Zaheer’s witness statement, in which Zaheer states how the accident occurred. Which one is true? [a] Clive should serve the witness statement on Fred by the latest day for serving witness statements, informing Fred that Zaheer will not be called and indicating why, or the hearsay evidence will not be admissible. [b] Clive should serve the witness statement on Fred by the latest day for serving witness statements, or there may be adjournment/costs implications

ANSWERS [a] Clive should serve the witness statement on Fred by the latest day for serving witness statements, informing Fred that Zaheer will not be called and indicating why, or the hearsay evidence will not be admissible. [b] Clive should serve the witness statement on Fred by the latest day for serving witness statements, or there may be adjournment/costs implications [b] is true

In civil proceedings against Reg, her employee, Sue wishes to adduce hearsay evidence in the form of business records. Which is/are true? (i) If Sue fails to serve notice of the fact that she intends to rely upon the hearsay evidence by the latest day for serving witness statements, the hearsay evidence will only be admissible with the court’s permission. (ii) Reg will not be entitled to see a copy of the records before the trial

ANSWERS They are both false (i) If Sue fails to serve notice of the fact that she intends to rely upon the hearsay evidence by the latest day for serving witness statements, the hearsay evidence will only be admissible with the court’s permission. (ii) Reg will not be entitled to see a copy of the records before the trial They are both false

Cross-examination (CEA 1995 section 3 and CPR 33.4) Where a party proposes to adduce hearsay evidence but does not propose to call the maker of the hearsay statement, another party may, with the permission of the court, call the maker and cross-examine him on the contents of the statement. Application for permission must be made within 14 days of service of notice of intention to rely on the hearsay evidence

Cross-examination (CEA 1995 s.3 and CPR 33.4) (continued) If A gives notice of his intention to rely on W’s hearsay statement but it is not adduced in evidence, W cannot be called for cross-examination If A serves W’s witness statement on B but neither calls W nor puts W’s statement in as hearsay evidence and B puts W’s statement in as hearsay evidence the court can permit A to call W for cross-examination

Cross-examination (CEA 1995 s.3 and CPR 33.4) (continued) Where the court gives a party permission to call the maker of a hearsay statement for cross-examination and the maker fails to attend the court can exclude the hearsay in the exercise of its exclusionary discretion under CPR 32.1, but it will normally be better to admit the hearsay and then attribute appropriate weight to it

Dan is bringing a claim for breach of copyright against Victor and serves the witness statement of Eric on Victor, informing Victor that he does not intend to call Eric because Eric’s state of health would make it difficult for him to attend court. Which one is true? [a] Victor, as of right, can require Eric to attend for cross-examination on the contents of his witness statement [b] Victor, with the permission of the court, can call Eric for cross-examination on the contents of his witness statement

ANSWERS [a] Victor, as of right, can require Eric to attend for cross-examination on the contents of his witness statement [b] Victor, with the permission of the court, can call Eric for cross-examination on the contents of his witness statement [b] is true

Estimating the weight of hearsay evidence (CEA 1995 s.4) In estimating the weight of hearsay evidence court must consider all circumstances from which an inference can reasonably be drawn as to its reliability or unreliability and may, in particular, have regard to the matters on the following slide, namely:

Estimating weight of hearsay evidence (contd.) Whether it was reasonable and practicable to call the maker Contemporaneity of the making of statement with the occurrence of the events Whether the hearsay is multiple hearsay Any motive to conceal or misrepresent matters on part of any person involved Was statement an edited account, was it made in collaboration with another or for a particular purpose? Do the circumstances in which the evidence was adduced suggest an attempt to prevent its weight being properly evaluated?

Human Rights and section 4 The admission of hearsay evidence in civil proceedings appears unlikely to violate Article 6 of the Convention provided that the judge does not treat it unfairly or attach a disproportionate weight to it, and Article 6 appears to add little to section 4 of the 1995 Act, if section 4 is properly applied

Fred is bringing a negligence claim against Roger Fred is bringing a negligence claim against Roger. Fred has served the witness statement of Wasim, an important eye witness, upon Roger, and has informed Roger that he does not intend to call Wasim because, due to pressure of work, Wasim would find it difficult to find time to attend court. Which is/are true? (i) Roger is entitled to call Fred for cross-examination on the witness statement (ii) If Roger is not called for cross-examination, the judge must treat the witness statement as possessing the same weight as the oral evidence of a witness who has been called and cross-examined

ANSWERS They are both false (i) Roger is entitled to call Fred for cross-examination on the witness statement (ii) If Roger is not called for cross-examination, the judge must treat the witness statement as possessing the same weight as the oral evidence of a witness who has been called and cross-examined They are both false

Competence (CEA 1995 section 5(1)) If the maker of the hearsay statement was not competent when he made it then the statement is not admissible. The same is true where the maker of a statement used to prove a hearsay statement was not competent when he made it. The burden of proving incompetence is on the party who asserts that the statement is not admissible.

Competence and Compellability in Civil Proceedings Competent---the witness may testify Compellable---the witness may be required to testify General rule: subject to exceptions, all persons are competent and compellable. 1

Defects of Mind (Competence in civil proceedings) Competence depends upon comprehension of the significance of testifying under oath (i.e. if a witness cannot take the oath then the witness is not competent) thus, in order to be competent, the witness must understand the seriousness of the occasion and the higher than normal duty of truthfulness which taking the oath imposes 2

Communication Difficulties (Competence in civil proceedings) Competence depends upon the ability of the witness to communicate effectively with the court (e.g. the competence of a witness who cannot hear may depend upon the witness’ ability to communicate via a sign language interpreter) 3

Children (competence in civil Proceedings) Competence to give sworn testimony depends on comprehension of the significance of testifying under oath (see above) Unlike an adult, if not competent to give sworn testimony may be competent to give unsworn testimony. Competence to give unsworn testimony (if aged under 18) depends on understanding that he/she is under a duty to speak the truth and possessing sufficient understanding to justify his/her evidence being heard (Children Act 1989, s 96) 4

In the context of proceedings in tort concerning the death of John, a forklift truck driver, the defendants, his employers, asserting that John was racing another forklift driver for a bet when he was killed, wish to call Sue, aged 8, and to rely upon a hearsay statement made by Roger, aged 35, who is of very low I.Q., Both Sue and Roger witnessed the accident. Which is/are true? (i) Sue is under 14 and thus cannot be competent (ii) Roger’s hearsay statement will be admissible if Roger was competent when he made it

ANSWERS (ii) is correct (i) Sue is under 14 and thus cannot be competent (ii) Roger’s hearsay statement will be admissible if Roger was competent when he made it (ii) is correct

Credibility (CEA 1995 section 5(2)) Where the maker of a hearsay statement is not called: evidence may be adduced to attack or support his credibility just as if he had been called; and evidence of his inconsistent statements is admissible to prove that he contradicted himself; but evidence cannot be adduced of matters concerning which if the maker of the statement had been called and had denied them when cross-examined the cross-examining party could not have adduced evidence (i.e. collateral matters)

Cars driven by Tony and Sue are involved in a collision Cars driven by Tony and Sue are involved in a collision. The accident is witnessed by Kim, aged 6, who, in her witness statement, states that the accident was the man’s fault. Sue is bringing a claim in negligence against Tony. Sue intends to rely on Kim’s witness statement without calling Kim to give evidence. Kim told her Friend Emma, aged 8, that the accident was the woman’s fault. Which is/are true? (i) Kim’s statement will be admissible unless Tony proves that she was not competent when she made it (ii) Emma’s evidence will not be admissible because Kim is not being called to give oral evidence.

ANSWERS (i) Kim’s statement will be admissible unless Tony proves that she was not competent when she made it (ii) Emma’s evidence will not be admissible because Kim is not being called to give oral evidence. (i) is correct.

Preserved common law hearsay exceptions (CEA 1995 section 7) The informal admission is no longer a preserved common law hearsay exception Section 7 preserves some minor common law hearsay exceptions concerning: published works, public documents, records, and evidence of reputation or family tradition

Lee crashes into Greg’s car and admits that the accident was his fault Lee crashes into Greg’s car and admits that the accident was his fault. Greg is bringing a negligence claim against Lee. Which one is true? [a] The admission is admissible under a preserved common law hearsay exception [b] The admission is admissible as a confession under PACE s.76 [c] The admission is admissible under CEA 1995 s.1 [d] The admission is inadmissible because it is a hearsay statement

ANSWERS [a] The admission is admissible under a preserved common law hearsay exception [b] The admission is admissible as a confession under PACE s.76 [c] The admission is admissible under CEA 1995 s.1 [d] The admission is inadmissible because it is a hearsay statement [c] is true.

CEA 1995 Section 8 (Proof of Statements contained in documents) A statement in a document may be proved in civil proceedings either by producing the document or by producing a copy authenticated in a manner approved by the court A copy need not be a direct copy of the original (it does not matter how many removes there are between original and copy)

Proof of statements in documents at common law At common law, the court may permit a statement in a document (if it is is admissible in evidence) to be proved by secondary evidence of its contents (i.e. by a copy or by oral evidence), though whether the court so permits seems to depend upon the weight of the secondary evidence, and the court will probably not so permit if the document could be produced without difficulty by the party tendering the secondary evidence Thus, where s.8 does not apply (because neither the original document nor a copy are available) it may be possible to prove a statement in a document at common law by calling a witness who read the document to give oral evidence, though the weight of the evidence may well be reduced

Proof of business/public authority records (CEA 1995 section 9) Documents certified by an officer of a business or a public authority to form part of the records thereof do not require further proof in civil proceedings The absence of an entry in business or public authority records may be proved by the affidavit of an officer thereof In appropriate circumstances the court may direct that provision(s) of section 9 do not apply to particular documents or records or to classes thereof

Which is/are true? In civil proceedings: (i) only original documents are admissible, copies are not; (ii) it may be possible to prove the contents of a document via the oral evidence of a witness who read it (iii) where a party wishes to rely on business documents, it is always necessary to call an officer of the business to prove the documents

ANSWERS (ii) is true In civil proceedings: (i) only original documents are admissible, copies are not; (ii) it may be possible to prove the contents of a document via the oral evidence of a witness who read it (iii) where a party wishes to rely on business documents, it is always necessary to call an officer of the business to prove the documents (ii) is true

Exclusionary discretion in civil proceedings at common law It appears that civil courts do not possess general common law discretion to exclude evidence Civil courts may possess common law discretion to exclude similar fact evidence (though in practice this may now be dealt with under CPR 32.1—see next slide)

Exclusionary discretion in civil proceedings under CPR 32.1 Civil courts now (under CPR 32.1) possess discretion to exclude admissible evidence and limit cross-examination (e.g. to exclude evidence of marginal relevance that would make the trial more complex, longer or more expensive) . The judge may give directions concerning the issues in relation to which evidence is required, the nature of the evidence required and the way in which the evidence is to be placed before the court. [Note: in practice a civil judge may, rather than excluding evidence of little or no relevance, admit the evidence but attribute little or no weight to it.]

Which is/are true? The judge was not entitled: In the context of civil proceedings brought by Andy against Hanif, the judge refused to permit the parties to call witnesses or adduce hearsay evidence in relation to a relevant issue which was of marginal relevance and limited the duration of the defendant’s cross-examine one of the claimant’s witnesses. Which is/are true? The judge was not entitled: (i) to exclude the hearsay evidence (ii) to prevent the witnesses being called (iii) to limit the duration of cross-examination

ANSWERS They are all false The judge was not entitled: (i) to exclude the hearsay evidence (ii) to prevent the witnesses being called (iii) to limit the duration of cross-examination They are all false

Similar Fact Evidence (i. e Similar Fact Evidence (i.e. bad character evidence) in Civil Proceedings SFE is admissible in civil proceedings if it is relevant to an issue in the proceedings, but if it is relevant the court may still exclude SFE in the exercise of its exclusionary discretion under CPR 32.1 Factors which may persuade the court to exclude relevant SFE may include, for example, will it make the trial more complex?, balancing probative value against prejudicial effect (particularly if there is a jury), and will it impose unfair burdens on other party (e.g. cost, length of trial or matters that took place long ago)?

Bad character evidence in Civil Proceedings (cont) Note: where evidence of bad character in civil proceedings takes the form of previous convictions, see Civil Evidence Act 1968, s.11 & 13 (which are considered later in the course in the context of estoppel)

In the context of proceedings in tort concerning the death of John, a forklift truck driver, at work, the defendants (his former employers), assert that John was racing another forklift driver for a bet when he was killed and wish to adduce evidence from John’s former employers to prove that, unknown to the defendants until after John’s death, John had been dismissed from his former employment as a forklift truck driver for racing another forklift driver for a bet. Which is/are true? [a] The evidence is not admissible as it is irrelevant [b] The evidence is admissible and the judge does not possess discretion to exclude it. .

ANSWERS They are both false. [a] The evidence is not admissible as it is irrelevant [b] The evidence is admissible and the judge does not possess discretion to exclude it. They are both false.

Exclusionary discretion in civil proceedings (continued) Magistrates courts do not possess discretion to exclude evidence (other, perhaps, than similar fact evidence at common law) in civil proceedings because the Civil Procedure Rules (and, consequently, CPR 32.1) do not apply to them.

Witness Statements (CPR Part 32) Contain the evidence which the witness would be allowed to give orally (i.e. they may contain admissible hearsay evidence or admissible non-expert opinion evidence) Witness statements of witnesses who a party intends to call must be served on the other party in accordance with directions Failure to serve in time means that the witness cannot be called to give oral evidence without the court’s permission

Witness Statements (continued) Where a party has served a witness statement and wishes to rely on the witness’s evidence at the trial he must call the witness unless the court orders otherwise or he puts the witness statement in as hearsay. Where a witness is called his witness statement stands as his evidence in chief unless the court orders otherwise. [Note: there may be circumstances, e.g. where credibility is in issue, where it makes good sense for the judge to hear oral evidence in chief.]

Witness Statements (continued) The court may give permission for the witness to amplify the witness statement or give evidence in relation to matters which have arisen since the witness statement was served If the party who served the witness statement does not call the witness or put the witness statement in as hearsay, another party may put it in as hearsay If the witness is called he may be cross-examined on his witness statement even if no part of it was referred to during his evidence in chief

Witness summaries (CPR Part 32) A party who cannot obtain a witness statement may be permitted by the court to serve a witness summary instead which either summarises what would be in the witness statement or, if this is not possible, states the questions which the witness will be asked Unless the court orders otherwise the witness summary must be served within the time specified by the court for service of witness statements

In civil proceedings brought by Cath against Julie, Julie intends to call Fred. Fred’s witness statement contains both hearsay evidence and non-expert opinion evidence and has not been served on Cath within the time specified by the court. Julie wishes Fred to give oral evidence in chief. Which is/are true? (i) Fred cannot be called because his witness statement was not served in time. (ii) A witness statement should never contain hearsay evidence or non-expert opinion evidence. (iii) Julie is entitled to require Fred to give oral evidence in chief

ANSWERS They are all false (i) Fred cannot be called because his witness statement was not served in time. (ii) A witness statement should never contain hearsay evidence or non-expert opinion evidence. (iii) Julie is entitled to require Fred to give oral evidence in chief They are all false

In civil proceedings between Sue and Rajeev, Sue has been unable to obtain a witness statement from Gill, as Gill has been abroad, though she does possess Gill’s proof of evidence. Sue has served the witness statement of Vince on Rajeev, but Sue has decided not to rely on Vince’s evidence. Which is/are true? (i) Sue may, as of right, serve a witness summary rather than Gill’s witness statement. (ii) Rajeev may put Vince’s witness statement in as hearsay evidence. (iii) If Rajeev puts Vince’s witness statement in Sue, with the court’s permission, may call him for cross-examination on it.

ANSWERS (ii) and (iii) are true. (i) Sue may, as of right, serve a witness summary rather than Gill’s witness statement. (ii) Rajeev may put Vince’s witness statement in as hearsay evidence. (iii) If Rajeev puts Vince’s witness statement in Sue, with the court’s permission, may call him for cross-examination on it. (ii) and (iii) are true.

Inferences from Silence at Common Law in Civil Proceedings It may be proper to draw an inference at common law from a party’s failure to respond to an allegation or from a party’s failure to give evidence (e.g. failure to put in a defence, to testify or to call witnesses)

Fred is arrested on suspicion of rape but is not prosecuted due to lack of evidence. Anne, the rape complainant, brings a claim in Tort against Fred. Anne gives evidence that she was raped by Fred and adduces circumstantial evidence linking him to the commission of the crime. Fred does not give evidence at the trial and offers no evidence in his defence. Which is/are true? (i) Anne must prove her case beyond reasonable doubt (ii) The court may draw an inference from Fred’s failure to give evidence

ANSWERS (i) Anne must prove her case beyond reasonable doubt (ii) The court may draw an inference from Fred’s failure to give evidence (ii) is true.