Hearsay in civil cases

Common law rule against hearsay

The hearsay rule is one of the oldest of the exclusionary rules in the law of evidence, having developed at the same time as the modern form of trial by jury.

At common law, a witness who was testifying could not repeat either:

  • What he had himself said outside the witness box on an earlier occasion; or
  • Assertions of other persons, whether oral, written or by conduct.

An assertion is hearsay when it is tendered to establish the truth of that asserted. It is not hearsay when tendered to establish the fact that an assertion was made or the manner in which it was made.

It is also necessary to distinguish between hearsay and real evidence. Real evidence consists of physical objects which are produced for inspection by the court. Thus, a watch may be produced to prove it is defective, or a dog to prove it is vicious. An automatic recording, e.g., a tape recording, video recording or computer printout can be an item of real evidence and, if so, will be admissible provided there is prima facie evidence that it is authentic and sufficiently intelligible. The question is whether any specific recording is real evidence or hearsay. This turns on whether the recording or printout contains information produced with human intervention: if not, it is real evidence.

Civil Evidence Act 1995

Admissibility of hearsay in civil cases

The admissibility of hearsay is governed by statute, which provides that:

In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

However, hearsay will not be admissible if the maker of the statement would not have been competent as a witness, such as through being too young or of unsound mind.

Notice procedure

The rules of court may:

    Specify classes of proceedings in which a party intending to rely on hearsay evidence must give advance notice to the other parties; Make provision for the other parties to request particulars of the hearsay evidence intended to be adduced; and Prescribe the manner and time for complying with the above.

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For more information on:

  • Assessing the weight of hearsay evidence