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Who said that?

11th October 2012

This topic isn’t trending on twitter yet but it can’t be long… the use of hearsay in possession proceedings.  In Moat Housing Group v Harris [2005] 3 WLR 691 Brooke LJ said “it is much more difficult for a judge to assess the truth of what he is being told if the original maker of the statement does not attend court to be cross-examined on his or her evidence”.  He was right and hence the need for rules on hearsay evidence.  However, some of us at Hardwicke have seen a noticeable increase in a somewhat casual approach to the use of hearsay.  Three recent examples that I have come across (and which weren’t necessarily the solicitor’s fault):

  1. A nuisance possession claim where only one of the five witnesses (the boyfriend of the principal complainant) made it to court.  Possession was ordered but it was quite a battle.
  2. Warrant stay application granted because judge felt he could not find the landlord’s case proved in the absence of the sole complainant (who was not asked to attend court).
  3. A senior housing officers assuring witnesses that they would not need to attend court long before the witness had even expressed a concern about doing so.

Ignoring hearsay rules makes counsel’s life a lot harder and risks losing the case with the usual downsides of paying the other side’s legal costs and upsetting/losing the client.  So not much at stake!

When relying upon hearsay evidence remember (1) there are rules on the use of hearsay, (2) some judges dislike hearsay (especially older judges and those who do crime), and (3) getting it wrong needlessly gives the other side ammunition that may distract from how lousy their case is.

In possession claims hearsay is primarily used to (1) prove complaints of nuisance, (2) produce documentary disclosure (such as criminal records, medical reports/letters, social worker’s reports, etc), and (3) previous judicial decisions.  So long as the judge spells out the correct approach to the use of hearsay in his/her judgment, he/she is can rely entirely upon hearsay (see Leeds CC v Harte [1999] CLYB 4069).
In particular, it’s worth revisiting the following statutory provisions (amongst the many others):

  • Section 1 Civil Evidence Act 1995 (“CEA 1995”) provides that in civil proceedings evidence shall not be excluded on the ground that it is hearsay.
  • Section 2 CEA 1995 is concerned with the giving of notice (which can be waived/dispensed with by agreement with the other side).
  • Section 3 CEA 1995 allows for the maker of a hearsay statement to be called for cross-examination.
  • Section 4 CEA 1995 deals with considerations relevant to the weighing of hearsay evidence and provides a non-exhaustive list.  Failure to comply with statutory requirements does not affect admissibility but may be taken into account as to weight and costs.
  • CPR 33.2(1) and (2) provide that a hearsay notice is not required if the other party has been told of non-attendance and the reasons for it at the time of service.
  • CPR 33.2(3) and (4) stipulate what information a hearsay notice should contain and that it should be served no later than the latest date for serving witness statements.
  • CPR 33.3 provides that a hearsay notice is not required for evidence at hearings other than trials.

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Sally Wollaston
Sally Wollaston
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