Hearsay Notices: The Need to Inform

This article will delve into hearsay evidence and the need for hearsay notices.

What is Hearsay Evidence?

The Civil Evidence Act 1995 and Civil Procedure Rules define hearsay evidence as “a statement made otherwise than by a person while giving oral evidence in proceedings which is tendered as evidence of the matters stated”. This is quite a complex definition but is best described by the following examples:

• A gives evidence by way of witness statement rather than attending trial to give evidence orally (thereby depriving the other parties of being able to cross-examine);
• A gives evidence in court of what B had told A after C had told B. In this example:
  • A’s oral evidence of what B said is A’s direct evidence – NOT HEARSAY
  • A’s oral evidence of what C said to B is first hand hearsay, not direct evidence from A.

There are a multitude of reasons as to why hearsay evidence may be necessary:

• A witness being unable to give evidence due to illness, death or being overseas;
• A witness wishing to give evidence of something they have heard and there is no other direct way of that evidence being given.
• Where a witness statement has been served but that party decides not to call that witness.

Giving Notice

Generally, notice must be given if a party intends to rely on hearsay evidence at trial, providing particulars of, or relating to, the hearsay evidence if requested.

While the general position is to serve a notice, one is not required in circumstances where the hearsay evidence is in a witness statement and the witness will be called to give evidence. The witness statement, in effect, acts as the notice of intention to rely on hearsay evidence.

Informal notice is required in circumstances where the hearsay evidence is in a witness statement and the witness will not be called to give oral evidence. The witness statement should be served on the other parties and at the same time you should: (1) inform the other parties you will not be calling the witness to give oral evidence, and (2) give the reason why they will not be called.

Formal notice is necessary in all other cases, where the hearsay evidence is not in a witness statement.

What to do if served with a Hearsay Notice?

Options are available to those who receive a hearsay notice, including:

• Attacking credibility: You may wish to consider making an application to court to seek permission to adduce evidence that will attack the credibility of the maker of the hearsay statement. Remember, notice of intention to attack credibility must be given to the party who proposed to give the hearsay evidence no later than 14 days after the date on which the hearsay notice was served.
• Cross examination: This approach allows you to call the hearsay statement maker in order to cross examine them on the contents of their statement. Again, time limits are strict and an application for permission must be made not more than 14 days after the day on which a notice of intention to rely on hearsay evidence was served.

Hearsay evidence as a topic is undoubtedly complex and does require legal assistance. Hearsay notices are, in some circumstances, necessary when seeking to rely on hearsay evidence. For a party who receives such a notice, options are available to respond.

If you consider you have a claim or consider that you be a defendant in a claim, do not hesitate to contact Warners’ litigation department on 01732770660 or at [email protected]

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.