Flashcards in LG 10 Deck (75):
Court control of evidence
CPR, r. 32.1 provides:
(1) The court may control the evidence by giving directions as to –
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(3) The court may limit cross-examination.
Such directions may be made:
(a) As a case management exercises, such as in a CMC or PTR; or
(b) By the trial judge.
They tend to be made applying the overriding objective.
PD 29, para 4.3:
CPR, r. 3.17(1):
PD 29, para 4.3:
At [the track allocation] stage the court’s first concern will be to ensure that the issues between the parties are identified and that the necessary evidence is prepared and disclosed.
CPR, r. 3.17(1):
When making any case management decision, the court will have regard to any available budgets of the parties and will take into account the costs involved in each procedural step.
Discretion to Exclude Evidence
CPR, r. 32.1(2) provides:
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
Civil courts have a general discretionary power to control and exclude evidence. There are no express limitations on the nature of the exclusionary power (Grobbelaar v Sun Newspapers, The Times 12/8/1999). From McPhilemy v Times Newspapers  3 All ER 775 it is clear that r. 32.1(2) can be used:
• To minimise the burdens on litigants
• To exclude peripheral material which is not essential to the just determination of the claim
• To exclude evidence obtained illegally, by trickery, bribery or deception, or in breach of the Human Rights Act 1998
Evidence of witnesses
CPR, r. 32.2 provides:
(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing.
(2) This is subject –
(a) to any provision to the contrary contained in these Rules or elsewhere; or
(b) to any order of the court.
(3) The court may give directions –
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements.
• Rule 32.2(1)(a) only applies to evidence of fact
• Expert evidence: see LGS 11
• Rule 32.2(1)(a) is primarily dealing with trials in Part 7 claims. In Part 8 claims evidence even in final hearings is usually presented in the form of witness statements (subject to the power to require the witness to attend for XX)
• Rule 32.2(1)(b) deals with evidence at interim hearings (see LGS 4). 'Evidence in writing' in r. 32.2(1)(b) primarily means witness statements.
• Alternatives are
- statement of case verified by a statement of truth
- evidence in the N244 (application notice) verified by a statement of truth
• Rule 32.7(1) provides that any party may apply for permission to XX the maker of a witness statement to be used at an interim hearing.
• Rule 32.7(2) says that if the maker of the statement does not attend for XX as required by a court order, his evidence may not be used unless the court gives permission.
• NB: rule 32.7 orders are incredibly rare.
QUESTION 1 Witness Statements
Bertram Godfrey, aged 82, is claiming damages against Alvin Mitchell, on the basis that Alvin ran down Bertram as he was crossing the road at a pedestrian crossing when the lights were on red to traffic. The particulars of claim include allegations that Alvin was driving at an excessive speed for the conditions (it was dark and raining), and that he failed to keep a proper look out. In his defence Alvin says he was driving at a reasonable speed and that Bertram suddenly wandered into the road in front of his car when the crossing lights were on green to traffic.
PC Trotter was on the scene soon after the accident and spoke to a member of the public, Charles Heath. PC Trotter noted in his accident report book that Charles told him that the crossing lights were on red to traffic at the time of the accident. Unfortunately, your solicitors have not been able to contact Charles, because he has moved away from the address he gave to PC Trotter, without leaving a forwarding address. The accident report book also refers to Jessica Brown who was the front seat passenger in Alvin's car at the time of the accident.
(a) Who should you call at the trial on behalf of Bertram?
(b) Explain the pre-trial arrangements for disclosure of the evidence to be given by the factual witnesses.
(c) How will you deal with the evidence-in-chief of your witnesses?
Directions for the Exchange of Trial Witness Statements
CPR, r. 32.4 provides:
(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.
(2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
(3) The court may give directions as to –
(a) the order in which witness statements are to be served; and
(b) whether or not the witness statements are to be filed.
The statements that need to be exchanged are those of the witnesses a party intends to call at trial. There is no obligation to disclose statements from ‘witnesses' who will not be called at trial.
PD 29, para 4.10(3):
Where the court is to give directions on its own initiative without holding a case management conference and it is not aware of any steps taken by the parties other than the exchange of statements of case, its general approach will be:
(3) to direct the disclosure of witness statements by way of simultaneous exchange ...
Normally mutual exchange is required, and it usually takes place a few weeks after disclosure and inspection of documents. Part of the reason why witness statements are exchanged after disclosure of documents is that the witnesses may need to comment on some of the documentation in their statements.
Sanction for not serving witness statements
CPR, r. 32.10 provides:
If a witness statement or witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.
See LGS 5 for sanctions.
Format of Exchanged Statements
CPR, r. 32.8 says a W/S must comply with the requirements in PD 32.
A witness statement will contain a formal heading with the title of the proceedings. In the top right-hand corner it should state the party on whose behalf it is made; the initials and surname of the witness; whether it is the first, second etc. statement of the witness; the references of the exhibits included; and the date it is made.
The opening paragraph should give details of the witness's occupation or description, and if relevant state the position he holds and the name of his employer, and should also state if the witness is a party in the proceedings, or employed by a party.
PD 32 requirements of WS cont
The statement should represent the witness's evidence-in-chief. The text of the statement must, if practicable, be in the witness's own words. It should be expressed in the first person. It is usually convenient to follow the chronological sequence of events. Each paragraph should, so far as possible, be confined to a distinct portion of the subject. The statement should indicate sections of its content that are made only from knowledge and belief as opposed to matters within the witness' own knowledge, and should state the sources of any matters of information and belief. All numbers, including dates, should be expressed in figures.
Documents referred to in the statement should be formally exhibited.
Witness statements must be produced on durable A4 paper with a 35 mm margin and typed on one side of the paper only. Wherever possible they should be securely bound in a manner that will not hamper filing. If they are not securely bound each page should bear the claim number and initials of the witness.
Statement of Truth
The statement must include a signed statement that the witness believes the facts it contains are true. False statements may be punished as contempt of court. The form of statement of truth is:
‘I believe that the facts stated in this witness statement are true.'
False Statement of Truth
CPR, r. 32.14 provides:
Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Witness statements stand as Evidence-in-Chief at trial
Exchanged witness statements stand as the witnesses' evidence in chief unless the court otherwise orders.
CPR, r. 32.5(1), (2), provide:
(a) a party has served a witness statement; and
(b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.
(2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the court orders otherwise
Amplification of Witness' Evidence
A witness may, however, and provided the court considers there is good reason not to confine the witness to the contents of the disclosed statement, amplify his or her witness statement and give evidence in relation to new matters that have arisen since the statement was served.
CPR, r. 32.5(3), (4), provide:
(3) A witness giving oral evidence at trial may with the permission of the court:
(a) amplify his witness statement; and
(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
(4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.
Cross-examination on a Witness Statement
CPR, r. 32.11, provides:
Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement whether or not the statement or any part of it was referred to during the witness’s evidence in chief.
Witness Statement Used by Opponent
CPR, r. 32.5(5), provides:
If a party who has served a witness statement does not–
(a) call the witness to give evidence at trial; or
(b) put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence.
Collateral Use of Disclosed Witness Statements
CPR, r. 32.12, provides:
(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
(2) Paragraph (1) does not apply if and to the extent that–
(a) the witness gives consent in writing to some other use of it;
(b) the court gives permission for some other use; or
(c) the witness statement has been put in evidence at a hearing held in public.
CPR, r. 32.9 provides:
(1) A party who –
(a) is required to serve a witness statement for use at trial; but
(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.
(2) A witness summary is a summary of –
(a) the evidence, if known, which would otherwise be included in a witness statement; or
(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.
(3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.
(4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.
(5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.
P unable to obtain signed statements before time prescribed?
A party who is unable to obtain signed statements before the time prescribed for exchange may apply for permission to serve witness summaries instead of witness statements. Witness summaries are simply summaries of the evidence that would have been included in a witness statement. They could be unsigned draft statements, or even just an indication of the issues it is hoped the witness could deal with.
Such orders can only be granted if the party is unable to obtain the relevant witness statement. Unless the court orders otherwise, a witness summary must be served, together with the order granting permission, within the period in which a witness statement would have had to be served.
QUESTION 2 Compelling Attendance at Trial
On the facts of Question 1, about 2 months before the trial your instructing solicitors contact PC Trotter to notify him of the date of the trial. He informs them that as he is a serving police officer he is not allowed to attend civil trials unless there is an official requirement to do so. Advise on the procedure that must be followed to secure his attendance at trial.
Issue Witness Summons
CPR, r. 34.2, provides:
(1) A witness summons is a document issued by the court requiring a witness to –
(a) attend court to give evidence; or
(b) produce documents to the court.
(2) A witness summons must be in the relevant practice form.
(3) There must be a separate witness summons for each witness.
Witness Summons Form APA Civil pp 424, 425
Witness Summons to Produce Documents
CPR, r. 34.2(4), (5), provide:
(4) A witness summons may require a witness to produce documents to the court either –
(a) on the date fixed for a hearing; or
(b) on such date as the court may direct.
(5) The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.
Issue of a Witness Summons
CPR, r. 34.3, provides:
(1) A witness summons is issued on the date entered on the summons by the court.
(2) A party must obtain permission from the court where he wishes to –
(a) have a summons issued less than 7 days before the date of the trial;
(b) have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or
(c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.
(3) A witness summons must be issued by –
(a) the court where the case is proceeding; or
(b) the court where the hearing in question will be held.
(4) The court may set aside or vary a witness summons issued under this rule.
• Means that issuing a witness summons is purely administrative provided it is issued at least 7 days before the start of the trial.
• Permission is required to issue a witness summons any closer to the trial.
Time for Serving a Witness Summons
CPR, r. 34.5, provides:
(1) The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.
(2) The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.
(3) A witness summons which is –
(a) served in accordance with this rule; and
(b) requires the witness to attend court to give evidence,
is binding until the conclusion of the hearing at which the attendance of the witness is required.
Who is to Serve a Witness Summons
CPR, r. 34.6, provides:
(1) A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.
(2) Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.
CPR, r. 34.7, provides:
At the time of service of a witness summons the witness must be offered or paid –
(a) a sum reasonably sufficient to cover his expenses in travelling to and from the court; and
(b) such sum by way of compensation for loss of time as may be specified in Practice Direction 34A.
Witness Summons in aid of Inferior Court or Tribunal
CPR, r. 34.4, provides:
(1) The court may issue a witness summons in aid of an inferior court or of a tribunal.
(2) The court which issued the witness summons under this rule may set it aside.
(3) In this rule, ‘inferior court or tribunal’ means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.
This is a default power allowing a person with a case before a lower court or tribunal to get a CC or HC witness summons to compel a witness to attend the relevant tribunal. Whether r. 34.4 is needed depends on the Act / SI governing particular tribunals. A number of First-Tier Tribunals do contain such a power, so they sort this out themselves. May assist e.g.
• arbitration tribunals (Arbitration Act 1996, s. 43)
QUESTION 3 Elderly and Infirm Witnesses
On the facts of Question 1 you take the view that Bertram is himself too old and infirm to be able to give evidence from the witness box at the trial. What alternative steps could be taken to ensure his version of events is admissible at the trial?
Court order to Examine a Witness for a Deposition
CPR, r. 34.8(1) - (5), provide:
(1) A party may apply for an order for a person to be examined before the hearing takes place.
(2) A person from whom evidence is to be obtained following an order under this rule is referred to as a ‘deponent’ and the evidence is referred to as a ‘deposition’.
(3) An order under this rule shall be for a deponent to be examined on oath before –
(a) a judge;
(b) an examiner of the court; or
(c) such other person as the court appoints.
(4) The order may require the production of any document which the court considers is necessary for the purposes of the examination.
(5) The order must state the date, time and place of the examination.
Witness Statement from Person to be Deposed
CPR, r. 34.8(7), provides:
(7) Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
Attendance: Conduct money and enforcement
CPR, r. 34.8(6), provides:
(6) At the time of service of the order the deponent must be offered or paid –
(a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
(b) such sum by way of compensation for loss of time as may be specified in Practice Direction 34A.
CPR, r. 34.10, provides:
(1) If a person served with an order to attend before an examiner –
(a) fails to attend; or
(b) refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document at the examination,
a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.
(2) On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.
(3) An application for an order under this rule may be made without notice.
(4) The court may order the person against whom an order is made under this rule to pay any costs resulting from his failure or refusal.
Conduct of the Examination
CPR, r. 34.9(1) - (4), provide:
(1) Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.
(2) If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.
(3) The examiner may conduct the examination in private if he considers it appropriate to do so.
(4) The examiner must ensure that the evidence given by the witness is recorded in full.
Service of the Deposition
CPR, r. 34.9(5) - (6), provide:
(5) The examiner must send a copy of the deposition –
(a) to the person who obtained the order for the examination of the witness; and
(b) to the court where the case is proceeding.
(6) The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.
Notice of Intention to Use Deposition at Trial
CPR, r. 34.11(2), (3), provide:
(2) A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.
(3) He must serve the notice at least 21 days before the day fixed for the hearing.
Use of Deposition at Trial
CPR, r. 34.11(1), (4) and (5), provide:
(1) A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise. ...
(4) The court may require a deponent to attend the hearing and give evidence orally.
(5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of rule 32.13 (availability of witness statements for inspection).
Restrictions on use of Freezing Injunction Depositions
CPR, r. 34.12, restricts the use of depositions about D's assets to the proceedings in which the order for the deposition was made.
• only applies to depositions about assets
• exceptions to the restriction are in r. 34.12(2)
A fact which is formally admitted ceases to be in issue. Evidence to prove such a fact is neither required nor allowed.
In civil proceedings a fact may be formally admitted in a variety of ways:
• In a defendant's Defence (see r. 16.5(1)(c))
• By a defendant failing to deal, in the Defence, with an allegation made by a claimant (see r 16.5(5))
• In response to a notice to admit facts (see r. 32.18)
• In response to a Request for Further Information (see rr. 18.1 and 26.5(3) and PD 18)
• Admissions before trial by the parties or their representatives (Ellis v Allen  1 Ch 904, an admission in a letter written by a legal adviser)
• Admissions at trial (Urquhart v Butterfield (1887) 37 Ch D 357, CA)
Notice to Admit
CPR, r. 32.18(1), provides:
(1) A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.
Notice to Admit Form
Time limit: notice to admit
CPR, r. 32.18(2), provides:
(2) A notice to admit facts must be served no later than 21 days before the trial.
Effect of Ignoring Notice to Admit
No immediate effects.
Effect of making admissions
CPR, r. 32.18(3), (4), provide:
(3) Where the other party makes any admission in response to the notice, the admission may be used against him only –
(a) in the proceedings in which the notice to admit is served; and
(b) by the party who served the notice.
(4) The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.
Costs Consequences of Failing to Admit pursuant to a Notice to Admit
Nothing specific in the CPR about costs consequences, but usually the side refusing to make the admissions will be at risk of having to pay the other side's costs on the issues covered by a Notice to Admit, even if the side refusing to make the admissions wins at trial.
CPR, r. 44.2(4), (5), provide:
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties; ...
(5) The conduct of the parties includes –
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; ...
• Serving a Notice to Admit might make it unreasonable for the other side to continue disputing the relevant issues
• Whether this is so depends largely on how central those issues are to the other side's case
• If the point is at the heart of the other side's case, it is unlikely to be unreasonable for them to continue to dispute it even after a Notice to Admit.
Authenticity of documents in list of documents:
Notice to Prove
Deemed admission of authenticity
CPR, r. 32.19(1), provides:
(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.
• Applies to documents disclosed by the other side. You are deemed to admit their documents are authentic
• Unless you serve a notice to prove
Time limit: notice to prove
CPR, r. 32.19(2), provides:
(2) A notice to prove a document must be served –
(a) by the latest date for serving witness statements; or
(b) within 7 days of disclosure of the document, whichever is later.
20 Civil Trial and Evidence
Trial of civil cases
Usual Sequence of Events at Trial APA Civil paras 39.36 to 39.54
• Claimant’s opening speech
• Claimant calls witnesses
o Sworn in or affirm
o Examination-in-chief ("X")
o Witnesses will have signed witness statements
o These will be in the trial bundles
o Witness statements stand as their evidence-in-chief
o Cross-examination ("XX") by the other side
o Re-examination ("RX") by Claimant
o Ask judge to "release" the witness (if not likely to be needed again)
o Call next witness etc
• C tenders documentary evidence, hearsay etc. Usually in the trial bundles
• C closes its case: "That is the case for the Claimant"
• [Possible submission of no case to answer: rare in civil trials]
• Defendant calls witnesses
• Defence closing speech
• Claimant closing speech
• Judgment by judge
• Arguments over costs (LGS 8)
• Possible summary assessment of costs [mainly fast track trials, but also see PD 29 para 10.5]
• Permission to appeal (LGS 9)
PD 29, para 10.2
The judge will generally have read the papers in the trial bundle and may dispense with an opening address.
Closing Speeches APA Civil para 39.51
Normally D will put in evidence, in which case the order of closing speeches is:
• D first
• C last
In cases where D tenders no evidence, the order of closing speeches is:
• C first
• D last
Trial Timetables APA Civil paras 29.32, 38.07, 39.37, 39.51
A trial timetable designates how the time available for the trial shall be used (CPR, r. 29.8).
• Trial timetable should be set as soon as practicable after filing pre-trial checklists
• Typically at the pre-trial review (r. 29.8)
• The trial judge may set his own trial timetable (PD 29 para 10.3)
• The trial judge may confirm or vary a previous trial timetable (PD 29 para 10.3)
• Parties must also provide trial time estimates (PD 29, para 9.2(2)(b))
Direct Testimony (not the same as “direct evidence”)
Testimony means the statements of a witness made orally in court and presented as evidence of the truth of what he or she states.
Direct testimony means the statements of a witness about a fact of which he or she has or claims to have direct, personal or first-hand knowledge.
Hearsay means any statement, other than one made by a witness in the course of giving his/her evidence, offered as evidence of the truth of its contents.
Real evidence usually takes the form of a material object produced for inspection by the court, either to prove that the object in question exists, or to enable the court to draw an inference from its own observation as to its physical condition or value.
• sample of defective goods
• vicious dog
• tool used in an accident
• view of the site
• computer printout recording attempts to enter a website (R(O) v Coventry Magistrates’ Court, The Times, 5 April 2004)
Documentary evidence consists of documents produced for inspection by the court, either as items of real evidence or as hearsay or direct evidence.
Primary evidence means evidence of the best or highest kind, applied, e.g., to the original of a document.
Secondary evidence is evidence of an inferior kind, applied, e.g., to a copy of a document or a copy of such a copy.
Burden of Proof
The legal burden is the obligation on a party to prove a fact in issue. Whether the burden has been discharged is decided at the end of the trial by the tribunal of fact.
The general rule is that the legal burden on any fact in issue is borne by the party asserting and not denying: he who asserts must prove, not he who denies. This means:
• The claimant must prove the elements of the cause of action;
• The defendant must prove the elements of any defence.
Standard of Proof
The standard of proof is the degree of cogency or persuasiveness required of the evidence adduced by a party in order to discharge their burden of proof. The civil standard is the “balance of probabilities”.
Miller v Minister of Pensions  2 All ER 372 at p. 374 per Denning J:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not', the burden is discharged, but, if the probabilities are equal, it is not.
Examination-in-chief and cross-examination
Evidence in chief The evidence given by a witness for the party who called him.
Cross-examination Questioning of a witness by a party other than the party who called the witness.
See above on the use of witness statements in X and XX.
Leading and non-leading questions
Leading questions are:
• usually those that suggest their answer
• also those which assume facts not yet established
Broadly, leading questions are only allowed:
• in XX and
• against your own witnesses if they are declared hostile
Leading questions can be used in examination-in-chief to elicit:
• formal matters
• introductory matters
• facts not in dispute
• where counsel for the other side has indicated no objection to leading
Small Claims Track
The strict rules of evidence do not apply: CPR, r. 27.8(3).
Evidence by Video Link
CPR, r. 32.3, provides:
The court may allow a witness to give evidence through a video link or by other means.
Plans, Photographs, Models
QUESTION 4 Plans and Photographs
On the facts of Question 1 your Instructing Solicitor would like to rely on a scale plan of the location of the accident, and a number of photographs taken about a year after the accident showing the approach to the pedestrian crossing from various angles. Advise your solicitor on whether these can be used at trial.
CPR, r. 33.6, provides:
(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.
Hearsay in Civil Cases
Civil LGS Workbook
QUESTION 5 Hearsay
The facts are the same as Question 1 above. Alvin’s solicitors have indicated that they will be objecting to the admissibility of PC Trotter’s evidence. Advise Bertram on:
(a) the admissibility of PC Trotter’s evidence about what Charles told him; and
(b) the weight that the court will attach to PC Trotter’s evidence.
Modern Hearsay Rule in Civil Claims
CEA 1995, s. 1(1): Evidence is never excluded purely on the ground of being hearsay.
• People often say s. 1 has abolished the hearsay rule in civil claims. Not strictly true
• Evidence is never inadmissible merely because it is hearsay
• Have to give notice (CEA 1995 s. 2)
• Have to give reasons for not requiring maker to attend trial
• Failing to give notice does not render the evidence inadmissible: goes to weight and costs
• There are statutory criteria for assessing the weight of hearsay evidence (CEA s. 4)
• Witness statements have to identify which parts of the evidence is within the knowledge of the maker of the statement, and what is hearsay (PD 32, para 18.2)
Definition of Hearsay
An assertion made otherwise than by a witness giving testimony in court is hearsay if tendered for the purpose of proving the truth of the matter asserted (CEA s. 1(2)(a)).
Hearsay must be distinguished from original evidence, which is evidence of an ‘out-of-court' statement adduced for any relevant purpose other than that of proving the truth of the facts it contains. Original evidence is admissible.
Ratten v R  AC 378, PC, Lord Wilberforce said at p. 387:
‘The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘‘testimonially'', i.e. as establishing some fact narrated by the words.'
An out-of-court statement may be hearsay depending on the purpose of adducing the evidence. If it is relevant to establish the fact of something having been said (whether or not true), the statement will be original evidence. It is only if what was said needs to be true to achieve its evidential purpose that the statement will properly be classified as a hearsay statement.
CEA 1995, s. 1(2)(b): Hearsay includes multiple hearsay of whatever degree. Also admissible under s. 1.
Notice of Intention to Rely on Hearsay
CEA 1995, s. 2(1): must give advance notice of hearsay
CPR, r. 33.3. Section 2(1) of the CEA 1995 does not apply:
(a) to evidence at hearings other than trials;
(aa) to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence; ...
Giving notice by serving witness statement
Frequently hearsay evidence to be used at trial will be contained in a witness statement. CPR, r. 33.2(1) provides:
Where a party intends to rely on hearsay evidence at trial and either-
(a) that evidence is to be given by a witness giving oral evidence; or
(b) that evidence is contained in a witness statement of a person who is not being called to give evidence;
that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court's order.
Reasons for non-attendance
Where the witness is not being called (i.e. r. 33.2(1)(b) applies), the party relying on the evidence must, when the witness statement is served:
(a) inform the other parties that the witness is not being called; and
(b) give the reason why the witness is not being called.
If hearsay to be used at trial is not contained in a witness statement, a hearsay notice must be served at the same time as witness statements are exchanged, together with a copy (r. 33.2(3), (4)). This must:
(a) identify the hearsay evidence;
(b) state that reliance on the hearsay is proposed at trial; and
(c) gives the reason why the witness is not being called.
Compliance with ECHR, art. 6
Clingham v Kensington and Chelsea LBC  1 AC 787
The admission of hearsay evidence does not automatically violate the Article 6 right to a fair trial. The weight given to hearsay evidence is dependent on the facts of each case.
The court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence (CEA 1995, s. 4(1)).
Relevant factors (s. 4(2)) include:
• reasonable or practical to call the maker of the statement
• made contemporaneously
• multiple hearsay
• motive to conceal or misrepresent
• edited account
• attempts to prevent proper evaluation of its weight
Failure to give notice is also relevant to weight: CEA 1995, s. 2(4)(b).
QUESTION 6 Challenging Hearsay Evidence
The facts are the same as Question 1. You are acting for Bertram. Solicitors acting for Alvin have served a witness statement signed by Jessica Brown which gives an account of the accident that support's Alvin's defence, together with a notice saying they do not propose calling Jessica as a witness because it is too inconvenient to arrange for her to attend.
Inquiries by your instructing solicitors are to the effect that Jessica lives about 100 miles from the court, and the return rail fare would be about £40. Jessica is unemployed. Advise Bertram:
(a) On the most appropriate procedure to adopt; and
(b) On any relevant time limits.
Attendance for cross-examination APA Civil para 33.22
A party receiving notification that another party wishes to rely on hearsay may apply for an order granting permission to call the maker of the statement at trial to be cross-examined on the contents of the statement (CEA 1995 s. 3; CPR, r. 33.4).
An application under s. 3 must be made not more than 14 days after the date on which notice to rely on the hearsay evidence was served (r. 33.4(2)).
Challenging Credibility of Hearsay
CPR, r. 33.5, provides:
(1) Where a party –
(a) proposes to rely on hearsay evidence; but
(b) does not propose to call the person who made the original statement to give oral evidence; and
(c) another party wishes to call evidence to attack the credibility of the person who made the statement,
the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.
(2) A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.
Civil Evidence Act 1968, s. 11 provides:
(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or by a court-martial there or elsewhere shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.
(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or by a court-martial there or elsewhere –
(a) he shall be taken to have committed that offence unless the contrary is proved; and
(b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.
• The conviction needs to be relevant to an issue in the civil claim
• The conviction must be "subsisting", i.e. not overturned on appeal etc.
• CEA 1968, s. 11(2)(a) creates a presumption that D committed the offence, but it is a rebuttable presumption ("unless the contrary is proved")
• Conviction must be pleaded in the PoC
Shifting Burden of Proof
CEA 1968, s. 11(2)(a), has the effect of shifting the burden of proof on whether [the defendant] committed the offence on to the defendant:
Stupple v Royal Insurance Ltd  QB 50.
The [defendant] can rebut the presumption by proving the contrary: s. 11(2)(a). This is an "uphill task" (Hunter v Chief Constable of West Midlands  AC 529).