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)
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. 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
(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 crossexamination
•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 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 crossexamination 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 crossexamined
ANSWERS
(i) Roger is entitled to call Fred for crossexamination 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.
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
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)
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)
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
(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. 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. 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
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 crossexamination (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.]
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
The judge was not entitled:
(i) to exclude the hearsay evidence
(ii) to prevent the witnesses being called
(iii) to limit the duration of crossexamination
They are all false
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
[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 nonexpert 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
(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 crossexamination on it.
ANSWERS
(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.