Admissions of fact

What are admissions?

Admissions are statements, whether express or implied, whether oral or written, which are wholly or partly adverse to a party’s case. Admissions may be either formal or informal.

Formal admissions

Formal admissions may be made by the statements of case or otherwise in writing including admissions made in compliance with a notice to admit or on a case management conference or other directions hearing.

Informal admissions

Informal admissions are simply items of evidence and may be disproved or explained away at trial by evidence to the contrary. Although they are hearsay, in that they are assertions made other than by a person while giving oral evidence at trial and are adduced as evidence of the facts asserted, they are admissible in evidence by virtue of Civil Evidence Act 1995, s 1.

Where the informal admission is made by a party personally, the only conditions of admissibility are:

  • That the statement must be at least partly adverse;
  • That the statement was made in the same legal capacity as that in which the party is now suing or being sued; and
  • That the statement is received in its entirety.

Notice to admit facts

A party may seek further to limit and define the issues at trial after the directions stage by serving a notice to admit. Notices to admit are a judicially favoured procedure.

Deemed admissions of the authenticity of disclosed documents

A party served with a list of documents may find that they are deemed to have admitted the authenticity of documents disclosed by the other side. If a party believes that documents disclosed by the other side are fabricated or have been tampered with, they must serve a notice to prove. There is a prescribed form for the notice, Form N268.

Proof of documents

Best evidence rule

There is a very old common law rule that the contents of a document must be proved by primary evidence. The rule is often said to be an aspect of the best evidence rule. The best primary evidence of a document is the original, although it has been held in Slaterie v Pooley (1840) 6 M & W 664 that an informal admission is primary evidence of the contents of a document against the party making the admission. Thus, under the general rule, a party suing for damages for breach of a covenant for quiet enjoyment will have to prove the covenant by reference to the original lease.

Secondary evidence of a document

There are a number of exceptions to the general rule:

  • Where the original has been lost and has been found after due search.
  • Where it is impossible to produce the original, such as the inscription on a foundation stone;
  • Where production is legally prohibited;
  • Public documents;
  • Documents covered by the Bankers’ Books Evidence Act 1879.

When secondary evidence can be given, the contents of the document can be proved by copies of the original, whether these be manuscript copies, or photocopies or some other method, including copies of copies. The only condition is that the witness producing the copies must be able to say that the copies are true copies.

Other side having the original

In this situation the old rules allowed a notice to produce the document at trial to be served on the other side. The notice did not compel production, although noncompliance may be grounds for drawing adverse inferences. However, the primary purpose behind the procedure was that it laid the ground for allowing secondary evidence. Secondary evidence was admissible where

  • There was evidence of due service of the notice to produce; and
  • There was evidence that the original was in the possession of a party served with notice to produce; and
  • The party served had not produced the original.

It was held that once secondary evidence had been adduced, the original could not be adduced to contradict the secondary evidence.