Civil evidence - hearsay and admissibility Flashcards
What is the general rule in relation to the admissibility of evidence?
All evidence that is relevant to the facts is admissible in civil proceedings. However, there are special rules governing:
*opinion evidence
*evidence which is privileged
*hearsay evidence.
What is hearsay evidence?
Hearsay is an oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated.
Is hearsay admissible?
Hearsay evidence is indirect evidence, whether written or oral, however, it is admissible.
What are the rules in relation to notice to rely on hearsay?
- If the evidence is in a witness statement of a person who is to give oral evidence at trial = no formal notice is required. Notice of the hearsay is deemed served when witness statements are served on the other party; no separate communication is required.
- If the evidence is in a witness statement of a person who is not giving oral evidence at trial = no formal notice is required BUT the other party must be informed that the witness will not be giving evidence at trial with reasons.
- In all other cases, formal notice must be given to the other party identifying the hearsay, stating that the party wishes to rely on it and the reason why the witness will not be called i.e. documents such as emails, GP notes and property plans.
If notice to rely on hearsay is not given when it should have been, what are the consequences?
If notice is not given when it should have been (usually no later than the latest date for serving witness statements), the evidence will still be admissible, but the weight the court attaches to it is likely to be less and the offending party may be penalised in costs.
What options does a party have on receipt of hearsay?
*request particulars of hearsay
*call for cross-examination
*challenge the weight of hearsay evidence
*attack credibility of an absent witness
What does it mean to request particulars of hearsay?
Can request particulars of hearsay that are reasonable and practicable for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.
What does call for cross-examination mean?
If the party adducing hearsay of a statement made by a person and does not call that person as a witness, any party to proceedings may, with leave of the court, call that person as a witness and cross-examine them on the statement.
Application must be made no later than 14 days after the hearsay notice was served on the applicant.
What does challenge the weight of the hearsay evidence mean?
It is possible to challenge the weight the court will attach to the hearsay evidence at trial. The factors the court will consider include:
(a) Whether it would have been reasonable and practicable for the party who adduced the evidence to have produced the maker of the original statement as a witness;
(b) Whether the original statement was made contemporaneously to the matters stated;
(c) Whether the evidence involves multiple hearsay
What does attack the credibility of an absent witness mean?
The attack should show that the absent witness made previous inconsistent and contradictory statements.
Receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served.
What type of evidence leads to different rules?
Evidence that is:
*Not contained in a witness statement or expert’s report;
*Not to be given orally at trial; or
*Not subject to the notice of intention to rely on hearsay provisions
This includes plans, photographs and models. Unless notice is given, the evidence will not be receivable at trial.
Can convictions be used as evidence in civil proceedings?
Can be admitted provided it is relevant to proving the issue in proceedings.
This does not mean that a conviction ends the issue within the civil proceedings. Instead, a person wanting to prove the contrary will have the burden of proving that the person convicted did not commit the offence on a balance of probabilities.
