‘Hearsay’ is defined in the Civil Evidence Act 1995 and Civil Procedure Rules 33.1 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’. In effect hearsay can be defined as an oral or written statement which is made out of court and is to be relied on in court to verify the accuracy and truthfulness of the impending matters.
The hearsay rules have been developed to ensure that parties are able to put forward and rely upon second hand evidence which the court and other party may challenge in relation to its credibility and use of the evidence in any proceedings.
Parties should avoid using hearsay evidence in a witness statement, but where it is not possible the court is likely to want the evidence to be cross examined at trial. Where hearsay evidence is to be provided it is usual for a hearsay notice to be served with any witness statement. This however is not the case if the witness intends to give oral evidence at trial and the hearsay evidence is contained in the witness statement of a person who is not being called to give evidence. You will need to set out why the witness is not being called and let the other parties know.
Where hearsay evidence is being relied upon the court may give less weight to the evidence adduced, but this is not always the case and this is a good reason to identify the hearsay evidence in a witness statement. The advantages of doing so, is that it will allow you to establish if the witness can be called to give first hand evidence and to calculate the weight the judge will give to the evidence at an early stage of the litigation.
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