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:
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.
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:
The court may:
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.
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:
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.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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