Admitting Evidence into the Proceedings
In civil proceedings the courts take a more inclusive approach to evidence as long as it is relevant to the matters involved in the case. Evidence will still have to follow procedural rules in terms of format and providing notice to the opposing party before the evidence can be admitted.
The court's power to admit and control evidence is found in CPR Part 32. CPR Part 32.1 provides that:1) The court may control evidence by giving directions as to -
a) the issues on which it requires evidence;
b) the nature of the evidence which it requires to decide those issues; and
c) the way in which the evidence is to be placed before the court.
6.3.1 Hearsay
The Civil Evidence Act 1995, s. 1(2) and the CPR Part 33.1 define hearsay in a similar way to the criminal definition as, “a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated”. Like criminal hearsay, it applies to statements (both oral, written and in pictorial form) that are made out of court, but the intention is to produce the evidence in court as proof that the information contained within the statement is true. It is the purpose for which the out of court evidence is to be used that categorises it as hearsay.
In civil proceedings all hearsay evidence is admissible as long as it is relevant to the proceedings. As we have seen in Chapter 5, the opposite is true in criminal proceedings. The Civil Evidence Act 1995, s. 1(1) states that evidence shall not be excluded on the grounds that it is hearsay.
Whilst as a general rule, hearsay evidence is admissible in the civil courts, there is still a procedure for admissibility that must be observed. Under s. 2 of the 1995 Act advance notice must be given to the other side of an intention to produce hearsay evidence. There is not a prescribed format for the notice.
However, where a party fails to give notice, this may be taken into account as a matter adversely affecting the weight (value) to be given to the evidence. The court can also make other sanctions such as cost orders.Section 3 of the Civil Evidence Act 1995 states that where a party has admitted hearsay evidence and refuses to call the witness, then the other party can, with the permission of the court, call and cross-examine the witness.
Section 4 of the 1995 Act deals with the question of what happens to the hearsay evidence once admitted. It is essentially for the court to decide how much weight to attach to the evidence. In deciding on the weight to attach to the hearsay evidence the court can look at matters such as:
• Whether it would have been reasonable and practicable for the party adducing the evidence to have called the witness.
• Whether the original statement was made contemporaneously with the matters stated.
• Whether it is multiple hearsay.
• Whether any person had a motive to conceal or misrepresent matters.
• Whether the original statement was an edited account or made in collaboration with another for a particular purpose.
• Whether the circumstances in which the hearsay evidence was introduced suggest there was an attempt to prevent its weight being properly assessed.
There are additional safeguards to be found under s. 5 of the 1995 Act, which stipulates that the maker of the statement must be competent as a witness and any evidence which could have been called to attack the credibility of the witness (if he had been called) is still admissible.
Under s. 6 of the Act the previous statements of a person called as a witness require the permission of the court unless they are used for the purpose of rebutting a suggestion that the witness's evidence is fabricated. Such statements are subject to the notice and weight provisions.
Section 6(3) also preserves the admissibility of previous inconsistent statements and these can be used to cross-examine a witness.There is of course the option for the court to exclude the hearsay evidence under CPR Part 32.1(2); however these powers are subject to the overriding objective of ensuring cases are dealt with justly and at proportionate cost.
6.3.2 Admissions
In civil proceedings admissions are generally admissible (unless obtained by torture). The procedure is set out in CPR Part 14 and PD 14. An admission should be made in writing (see CPR Part 14.1(2)). A written admission will need to be contained in the hearing/trial bundle and may take the form of letter, email or statement of case.
Under CPR Part 32.18 a party can serve a notice on another party requiring them to admit facts or to admit part of the case. However, this cannot be served later than 21 days before the trial. If the other party makes the admission, then it can be used against the party in the proceedings although the court has the power to allow a party to amend or withdraw their admission.
If an admission is made before proceedings have begun, then it can be withdrawn before any proceedings are issued as long as the other party agrees (see CPR Part 14.1A). However, if an admission has been made after proceedings are issued then it can only be withdrawn with either the consent of the other party or, failing that, the permission of the court.
In deciding whether to give permission, the court will consider the factors set out in CPR PD 14 para 7.2. These factors include whether new evidence has come to light,
the conduct of the parties, any prejudice that would be caused, how promptly the application to withdraw was made and the prospects of success of the claim.
In Woodland v Stopford [2012] EWCA Civ 266 the Court of Appeal held that a judge has to carefully balance these relevant factors and that they need not be considered in a hierarchical order. As such one factor does not have greater weight than another.
The para 7.2 factors are matters for a judge's discretion and the case of Woodland confirmed that an appeal court would not interfere with that discretion unless the judge had made an error in taking into account a factor that he/she was not entitled to consider.Where an admission remains and has not been withdrawn by a party, the other party can then seek to enter judgment based on that admission. However, the authenticity of an admission might be challenged. For example, an admission may have been obtained improperly, for example, by torture. The court has a wide discretion to exclude such evidence under CPR Part 32.1 (2). In Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34 the Supreme Court held that before deciding the question of admissibility, the court should first decide the question of weight of the evidence. This is an important first step because it may be that the evidence is not of great importance in the final decision the court must reach and so can be admitted for the time being. By side stepping the question of admissibility, the judge can decide what weight to attach to the evidence at a later date if it continues to remain a contentious issue between the parties and this decision can take into account any arguments about the fairness of its admission.