Common law rule against hearsay
The common law against hearsay, in general terms, prevents one person testifying to the truth of what they have been told by another person.
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 they had themselves 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.
Civil Evidence Act 1995
Admissibility of hearsay in civil cases
Hearsay evidence is now admissible in civil proceedings to a greater extent than in criminal proceedings, provided the correct procedures are followed. The rules regarding hearsay evidence in civil cases is governed by the Civil Evidence Act 1995 (CEA 1995), which explicitly provides in s 1(1) that ‘in civil proceedings evidence shall not be excluded on the ground that it is hearsay’.
Hearsay is defined in s 1(2) of CEA 1995 as: ‘…a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated.’
Under s 5 of CEA 1995, hearsay is not admissible if the maker of the statement would not have been competent to be a witness, such as if they are too young , of unsound mind, or lack understanding.
Under s 2 of CEA 1995, a party seeking to rely on hearsay evidence must provide a notice of proposal to adduce hearsay evidence. The notice should:
- identify the hearsay evidence;
- state the party’s intention to rely on the evidence at trial; and
- explain why the witness cannot be called.
The 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.
Hearsay is frequently given by witnesses who repeat what they were told on a previous occasion, and, as the witness statements are supposed to set out what the witnesses intend to say in evidence, hearsay evidence will usually be set out in the exchanged witness statement.
A single hearsay notice may deal with the hearsay evidence of more than one witness. The duty to give notice may be waived by the parties. A failure to comply with the duty does not affect the admissibility of the hearsay evidence, but may adversely affect the weight of the evidence and may be penalised in costs.
Assessing the weight of hearsay evidence
Hearsay evidence adduced at trial may not carry the same weight as live evidence. The court has a discretion as to the weight it gives hearsay evidence. In assessing weight, all the relevant circumstances must be considered. These include, according to s 4 of CEA 1995:
- whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
- whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
- whether the evidence involves multiple hearsay;
- whether any person involved had any motive to conceal or misrepresent matters;
- whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
- whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
Where hearsay evidence is adduced and the maker of the original statement, or of any statement relied upon to prove another statement, is not called as a witness, s 5(2) of CEA 1995 allows the admissibility of evidence attacking or supporting their credibility as a witness. It also allows evidence which aims to show that the maker of the original statement had contradicted themselves, either before or after they made the statement.
Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them on the statement as if they had been called by the first-mentioned party and as if the hearsay statement were their evidence in chief.