Hearsay part 7: hearsay in civil proceedings

Hearsay in civil proceedings is governed by the Civil Evidence Act 1995 ("the 1995 Act"). It is of wide application. By section 11 it applies to civil proceedings before any tribunal in which the strict rules of evidence apply, whether that is by the effect of law or the agreement of the parties. For all practical purposes the 1995 Act has abolished the hearsay rule in civil cases. That means that hearsay statements are in the main admissible in civil proceedings to prove the truth of their contents.

Although there is no provision in the 1995 Act which suggests that the trial judge can exclude the evidence as a matter of discretion, judges have wide power regarding the admission of evidence under CPR 32. This as with all provisions under the Civil Procedure Rules is to be exercised with a view to pursuing the overriding objective of dealing with cases justly. Therefore although admissible by statute, if there is any unfairness about hearsay evidence being used the judge can deal with that by appropriate orders.

Hearsay can only be adduced if it is from a party who would have been competent as a witness (the 1995 Act section 5). Thus a statement would not be allowed from a child, who was of such tender years or lack of understanding that they would not have been allowed to give evidence. The position is the same regarding a person suffering from some mental condition.

Section 2 of the 1995 Act includes various provisions regarding notice. CPR 32 includes a variety of rules regarding evidence. At CPR 33.2 it provides the service of a witness statement is sufficient notice of intention to adduce hearsay evidence contained in it whether or not the maker of the witness statement will be called. This means that when before a trial the parties exchange witness statements, the other side should treat hearsay statements contained in those witness statements as notice of the intention to adduce and rely upon them. However if the person who is actually made the statement including hearsay evidence is not to be called, the other parties must be informed of that and the reason why he would not be called. This plainly would be relevant to the weight to be given to the evidence.

Hearsay evidence in documents other than witness statements needs to be dealt with by service of a separate notice identifying evidence and stating the intention to rely upon it at trial.

One of the key objections to hearsay evidence along the years has related to the inability to test the evidence (if you are cross-examining someone about evidence where it is something they say they have seen or experienced it is easier to seek to demonstrate inconsistencies in the evidence than if they are merely reciting something someone else has said in such a case when you try and expose the inconsistencies the witness is merely likely to say they can't say, they are merely repeating what the other person told them.). Section 4 of the 1995 Act specifically seeks to deal with the reliability problems that this can involve. The court is directed to have regard to those circumstances from which you can draw inferences as to the reliability or otherwise of the evidence. Section 4 (2) then specifies particular matters to which regard may be had. Those include: whether it was reasonable and practical to call the person who gave hearsay; whether the hearsay was contemporaneous with the matters to which it relates; whether it involves multiple hearsay (i.e. hearsay about hearsay); whether anyone involved had any motive for concealment or misrepresentation and whether the account was edited or made in collaboration with another; finally whether the way in which the evidence has been adduced suggests that there may have been an attempt to stop the evidence being properly evaluated.

If there was evidence which could have been used to attack the maker of the statement had they given evidence directly rather than it being hearsay, there is also provision to allow such material to be introduced (see section 5 of the 1995 Act and CPR 33).

In broad terms therefore, although the question of weight and reliability will be a matter for the court, hearsay evidence is routinely and universally admissible in civil cases.