INTRODUCTION
Most Local Authorities (Billing Authorities) bring proceedings in respect to non-payment of national non-domestic rates (Business Rates) in the Magistrates Court. Such claims (brought by application by way of complaint) are civil proceedings in the Magistrates Court. Where there are factual disputes between the relevant Billing Authority and the (alleged) ratepayer, usually the existence (or otherwise) of the disputed facts, are proved in Court using evidence[1] (whether tending to prove the fact, or conversely, tending to disprove the fact). One type of evidence, is hearsay evidence. But is reliance upon hearsay evidence allowed in the Magistrates Court? in particular, in Business Rates cases? The answer is that yes, reliance on hearsay evidence is permitted, but there are some procedural rules surrounding its use, and there is a consequence, if those procedural rules (obligations) are not complied with.
The article will consider the rules surrounding the use of hearsay evidence in civil proceedings the Magistrates Court, making reference to:
(1) Civil Evidence Act 1995 (the '1995 Act')(applying to England and Wales[2]); and
(2) The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681) ('Hearsay Evidence Rules 1999').
The Civil Procedure Rules ('CPR') do not apply here[3a].
Before considering the 1995 Act and Hearsay Evidence Rules 1999 in depth, there are 3 things to state:
(1) A good overview summary was given by May LJ in the Divisional Court in R. (on the application of Cleary) v Highbury Corner Magistrates' Court [2007] 1 WLR 1272('Cleary')[3b]
(2) it is important to appreciate that the rules around using hearsay evidence in the Magistrates Court, differs very significantly, as between: (a) civil proceedings; and (b) criminal proceedings. It is beyond the scope of this article to consider the rules on hearsay evidence in criminal proceedings in the Magistrates Court[4a]; and
(3) records of a business or public authority are dealt with by section 9 of the 1995 Act[4b].
Note, in the Magistrates Court, the general case management power/provision is r.3A of the Magistrates Court Rules 1981 (SI 1981/552), entitled, 'Case Management'[4c]
HEARSAY IN CIVIL PROCEEDINGS IN THE MAGISTRATES COURT
Definition of 'Civil Proceedings'
In the 1995 Act, section 11 is entitled 'Meaning of "civil proceedings"', and states:
‘In this Act “civil proceedings” means civil proceedings, before any tribunal, in relation to which the strict rules of evidence apply, whether as a matter of law or by agreement of the parties. References to “the court” and “rules of court” shall be construed accordingly.’[5]
The Magistrates Court comes within the definition of 'any tribunal' here, and civil proceedings are therefore section 11 'civil proceedings'.
Definition of 'hearsay'
The word 'hearsay' is defined for the purpose of 1995 Act. Section 1(2) of the 1995 Act provides that:
(a) '“hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated' (subsection 1(2)(b)), and that,
(b) 'references to hearsay include hearsay of whatever degree' (subsection 1(2)(b)).
Accordingly, aside from statements made by somebody actually in the witness box in the Magistrates Court (tendered as evidence of the matters stated), any statement made, which a party to civil proceedings in the Magistrates Court, wishes to rely upon in those proceedings, as being true, is hearsay evidence.
The most obvious example is where a party wishes to rely upon statements (tendered as evidence of the matters stated) made in a witness statement document. In almost every case, where:
(1) a party is in possession of a witness statement from a witness; and
(2) that witness is not/will not be in attendance at the Magistrates Court to go into the witness box and give oral evidence (anticipated to be the same as the contents of the witness statement); and
(3) the party in possession of the witness statement wishes to rely upon the statements in the witness statement, as true,
then the party so wishing, will be seeking to rely upon hearsay evidence.
In terms of a convenient label for this party, while there is no obvious one to use for this party, and while 'hearsay relying party' or 'hearsay adducing party' convey the attributes/intentions of the party, for convenience, this article will label this party the 'Hearsay Adducer'.
Admissibility of hearsay evidence
Section 1 of the 1995 Act is entitled 'Admissibility of hearsay evidence' and subsection 1(1) contains the key general principle, that: evidence is not excluded merely on the ground that it is hearsay. Subsection 1(1) states:
'In civil proceedings evidence shall not be excluded on the ground that it is hearsay.'
It has been held that admissibility of hearsay evidence does not, itself, entail a breach of other side's European Convention of Human Rights article 6(1) right to a fair hearing [6].
Procedure - Notification Obligations
Where a Hearsay Adducer seeks to rely upon hearsay evidence in civil proceedings, there are some procedural things he must do. These procedural things are obligations to notify, and are imposed through a combination of: (a) the 1995 Act; and (b) Hearsay Evidence Rules 1999.
Section 2 of the 1995 Act is entitled 'Notice of proposal to adduce hearsay evidence' and subsection 2(1) reads:
'(1) A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings-
(a) such notice (if any) of the fact, and
(b) on request, such particulars of or relating to the evidence, as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay.'
Breaking this down, this notification obligation on the Hearsay Adducer, is:
(1) 'subject to the following provisions of this section' - i.e. the other provisions in section 2 of the 1995 Act.
(2) comes in two parts:
(a) the initial obligation to give notice, to the other party/parties (the 'Other Side') in the proceedings, of the fact that the Hearsay Adducer proposes to adduce hearsay evidence in the proceedings. This notice is given in the form of a hearsay notice[7]. The 'such notice ... of the fact' is (though it might not at first appear it) to be governed by the 'reasonable and practicable' requirement (in 'as is reasonable and practicable in the circumstances for the purpose of enabling [the Other Side] to deal with any matters arising from its being hearsay'). May LJ stated this in Cleary, at paragraph 27, where he said 'Syntactically, the “reasonable and practicable” requirement applies to the notice as well as the particulars.'
(b) if, following the compliance with the initial obligation, the Other Side makes a request of the Hearsay Adducer, the Hearsay Adducer is to give the Other Side '...such particulars of or relating to the evidence, as is reasonable and practicable in the circumstances for the purpose of enabling [the Other Side] to deal with any matters arising from its being hearsay.'
'Subject to the following provisions of this section'
The notification obligation imposed by section 2(1) is subject to the rest of section 2. Section 2(2) and 2(3) read, respectively:
'Provision may be made by rules of court
(a) specifying classes of proceedings or evidence in relation to which subsection (1) does not apply, and
(b) as to the manner in which (including the time within which) the duties imposed by that subsection are to be complied with in the cases where it does apply.'
and
'Subsection (1) may also be excluded by agreement of the parties; and compliance with the duty to give notice may in any case be waived by the person to whom notice is required to be given.'
Provision by rules of court
In accordance with, and under section 2(2)[8], provision has been made through rules of court, as to the manner in which the obligations imposed by subsection 2(1) are to be complied with - namely, in the Hearsay Evidence Rules 1999[9].
Looking at Hearsay Evidence Rules 1999, there is rule 3, entitled 'Hearsay notices', which provides (for England and Wales):
'(1) Subject to paragraphs (2) and (3), a party who desires to give hearsay evidence at the hearing must, not less than 21 days before the date fixed for the hearing, serve a hearsay notice on every other party and file a copy in the court by serving it on the designated officer for the court....
That 21 day deadline can be varied by the Magistrates Court (pursuant to an application or on its own motion)[10].
There is provision dictating what must be contained in the hearsay notices. In Hearsay Evidence Rules 1999, r. 3(4) (England and Wales), it specifies that the hearsay notice must:
(a) state that it is a hearsay notice;
(b) identify the proceedings in which the hearsay evidence is to be given;
(c) state that the party proposes to adduce hearsay evidence;
(d) identify the hearsay evidence;
(e) identify the person who made the statement which is to be given in evidence; and
(f) state why that person will not be called to give oral evidence.
(5) A single hearsay notice may deal with the hearsay evidence of more than one witness.'
Hearsay Evidence Rules 1999, r.6 is entitled 'Service' and contains provisions as to how service of the hearsay notices, is to be effected[11].
Excluded by Agreement / Obligation waived by Other Side
Aside from performance of the notification obligation, the notificiation obligation can be satisfied/discharged by:
(1) agreement. In other words, prospectively, or indeed retrospectively, the parties can agree the notification obligation will not apply; and
(2) waiver, arising from the actions of the Other Side. In other words, the Hearsay Adducer (notification obligor) will be released from the notification obligation, by the actions of the Other Side, that the law takes as amounting to a waiver by the Other Side of the notification obligation.
Other Side's Option to call Witness and the Cross Examine the Witness
The Other Side, on receipt of the Hearsay Notice, may wish to (still) cross examine the witness. Section 3 of the 1995 Act makes provision[12] for the rules of court to enable this to happen. The hearsay evidence to stand as the witnesses examination in chief evidence, with the Other Side then able to cross examine the witness on that hearsay evidence (i.e. the statements contained in the hearsay evidence). See also Hearsay Evidence Rules 1999, rule 4 (England and Wales), entitled 'Power to call witness for cross-examination on hearsay evidence'[13]
Provisions as to witness' competence and credibility
Hearsay evidence will not be admitted if, in essence, the statement was made by someone who was not competent[14] as a witness (i.e. suffering from such a mental or physical infirmity, or lack of understanding, as would render a person incompetent as a witness in civil proceedings (note special provisions in relation to a child[15]);
The Other Side's can still call adduce evidence attacking the witness' credibility[16] and raise previous inconsistent statements [17].
Consequences of Failure to Comply with Notification Obligation
A failure to comply with the extant notification obligation in section 2(1), or failing to comply with the rules contained in Hearsay Evidence Rules 1999:
(1) does not render the hearsay evidence inadmissible; but
(2) '...may be taken into account by the court...':
(a) when the court is determining the course of proceedings;
(b) as a matter adversely affecting the weight that can be given to that piece of evidence; and
(c) when the court considers the issue of costs.
[to put them in a more logical order than they appear in section 2 of the 1995 Act]
Section 2(4) of the 1995 Act sets out these consequences, providing:
'A failure to comply with subsection (1), or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court-
(a) in considering the exercise of its powers with respect to the course of proceedings and costs, and
(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.'
Weight for Hearsay Evidence
As to weight to be given to the hearsay evidence, section 4 of the 1995 Act sets out the factors/considerations going into determining the appropriate weight for the hearsay evidence. Section 4 is entitled 'Considerations relevant to weighing of hearsay evidence' and reads:
'(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following-
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.'
So, hearsay evidence is admissible, and its weight will need to be considered in light of:
(1) under section 4 factors/considerations;
(2) the statutory direction in section 2(4)(b) of the 1995 Act, that 'A failure to comply with [section 2(1) of the 1995 Act] ...may be taken into account by the court...(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4')
Non-compliance - Weight for Hearsay Evidence
Merely because it is hearsay evidence and there has been non-compliance with the hearsay rules, does not render it non-probative. Merely because the author of the statement put in for the truth of its contents, cannot be cross-examined, does not render that statement non-probative. In Clingham v Kensington and Chelsea RLBC [2001] EWHC Admin 1; (2001) 165 J.P. 322 (Queens Bench Divisional Court: Schiemann LJ; Poole J) ('Clingham')(an anti-social behaviour case), Schiemann LJ (with whom Poole J agreed), said, at paragraph 19:
'I do not accept that in all circumstances evidence which can not be cross-examined is not probative of anything. Such a holding would be contrary to the Common Law - which has always allowed hearsay evidence in some circumstances - and to the Civil Evidence Act section 2(4).'[18]
Poole J in Clingham said, while speaking of section 2(4) of the 1995 Act, at paragraphs 21 and 22 (note, Poole J gave the second judgment, so it was not agreed with by Schiemann LJ):
'...when, in a case of non-compliance with the Rules, resort is had to this subsection, it cannot be easily argued that the material considered thereunder, provided always that it is relevant, should be given no weight at all.
The effect of s.2(4), read together with s.1, in my judgment, is that weight will ordinarily attach to such material, but that the precise degree of that weight will depend on all the circumstances of the case and the detailed consideration given to those circumstances by the court, as enjoined by subsection 2(4)(b) and section 4. That weight may or may not be sufficient for the making of an order. But it is hard to picture a case where the material, if relevant, will have no weight at all.'
Compliance - Weight for Hearsay Evidence
Where there has been compliance with the hearsay rules, it will still be a matter for the Magistrates Court as to what weight to place on that hearsay evidence under section 4 of the 1995 Act, and the importance of that weight/hearsay evidence, will depend on: (a) all the other evidence before the Magistrates Court; (b) who bears the evidential and/or legal burden on a particular legal test.
The Document/Witness Statement
The existence of the statement sought to be relied upon as hearsay evidence, can be proved by production of the document/witness statement that contains it (i.e. the original), or, a copy (no matter how many times removed) of the same/material part of the same[19].
Other Evidence Provisions Unaffected
Note, the 1995 Act does not affect the admissibility of evidence - rendered admissible - by law outside section 1 of the 1995[20].
SIMON HILL © 2023*
BARRISTER
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole, or the Copyright holder. No attempt has been made to provide an exhaustive review/account of the law in this area. *Copyright is owned by Barrister Search Limited.
[1] Proved by evidence, as opposed to, for instance, by judicial notice. By definition, disputed facts are not proved by admission. A fact can be proved by unrebutted/irrebutable presumptions or assumptions, but there are none of these in business rates law. There are evidential and legal burdens, but that is different. With business rates law, once: (1) the Billing Authority have reasonable grounds for believing a person (the alleged ratepayer) is or may be in rateable occupation of premises (or liable for the rateably unoccupied business rates); and (2) the Billing Authority has shown that:
'...(a) the rate in question has been duly made and published; (b) it has been duly demanded from the respondent, and (c) it has not been paid.' (Ratford v Northavon Council [1987] 1 QB 357, 369H to 370H; 'Ratford')), then an evidential burden arises on the alleged ratepayer '...to show sufficient cause for not having paid the sum demanded: see Verrall v. Hackney London Borough Council [1983] Q.B. 445 , 459, per May L.J.' (Ratford, 369H to 370H).
In Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin), Eyre J held, at paragraph 50 and 53, that Holman J's analysis of the law here was correct, namely that:
'...once the primary facts had been established “there was an evidential burden which ‘swung’ or ‘shifted’ to [the alleged ratepayer] to show that they were not in rateable occupation”
[2] In the Civil Evidence Act 1995, section 16(4) provides:
'This Act extends to England and Wales;'
[3a] The Civil Procedure Rules ('CPR') set out, to which proceedings they apply to, in CPR r.2.1, entitled 'Application of the Rules'. Rule 2 reads, so far as material:
'(1) Subject to paragraph (2), these Rules apply to all proceedings in-
(a) the County Court;
(b) the High Court; and
(c) the Civil Division of the Court of Appeal.
(2) These Rules do not apply to proceedings of the kinds specified in the first column of the following table (proceedings for which rules may be made under the enactments specified in the second column) except to the extent that they are applied to those proceedings by another enactment-
...
(3) These Rules apply to proceedings under-
(a) the Companies Act 1985;
(b) the Companies Act 2006; and
(c) other legislation relating to companies and limited liability partnerships, subject to the provisions of the relevant practice direction which applies to those proceedings.'
The Magistrates Court does not come within any of the above. So the Civil Procedure Rules do not apply.
[3b] A useful summary about hearsay evidence in civil proceedings in the Magistrates Court, is set out by May LJ (sitting with Langstaff J) in the Divisional Court in R. (on the application of Cleary) v Highbury Corner Magistrates' Court [2007] 1 WLR 1272 ('Cleary'). Cleary was not a business rates case. It involved: (1) an application for a closure order (i.e. an application for an order, closing down a property because it is linked to class A use, production or supply etc. - section 1 of the Anti-Social Behaviour Act 2003); and (2) the use of anonymous hearsay (something unlikely to come up in business rates cases). It is still illuminating though. Taking May LJ's judgment in Cleary in stages:
(1) at paragraphs 27 to 29, May LJ set out the general structure of hearsay evidence in civil proceedings in the Magistrates Court:
'As to hearsay evidence, this is in principle admissible under section 1 of the Civil Evidence Act 1995. But, by section 2(1), a party proposing to adduce hearsay evidence in civil proceedings has to give the other party notice of that fact and, on request, such particulars of or relating to the evidence as is reasonable and practicable in the circumstances for the purpose of enabling him to deal with any matters arising from it being hearsay. Syntactically, the “reasonable and practicable” requirement applies to the notice as well as the particulars. There is provision for rules of court. A failure to comply with rules does not affect the admissibility of the evidence, but may be taken into account as a matter affecting the weight to be given to the evidence.
Section 3 provides that the rules may provide that another party to the proceedings may with the leave of the court call as a witness and cross-examine the maker of the hearsay statement. Thus to expect to adduce, as hearsay, evidence of a person who is not identified offends the spirit if not the letter of section 3, since a defendant cannot seek leave to call and cross-examine a witness whose identity is not revealed.
Section 4 of the 1995 Act provides:
“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
“(2) Regard may be had, in particular, to the following-
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matter stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
(2) May LJ then address a party trying to rely upon anonymous hearsay witnesses. This is unlikely to come up with business rates cases, but it might be helpful to set out the Court's concern for systematically permitting such hearsay evidence. May LJ said, at paragraphs 30 and 31:
'In my view, it may too easily be supposed that people who give information about drug dealers should not be required to come to court to give evidence. In individual cases, the fear may be genuine. But an easy assumption that this will always be so and that hearsay evidence is routine in these cases risks real injustice. After all, defendants to an application for a closure order may risk being dispossessed from their home for up to six months, and the statute for obvious reasons expects both that witnesses will be identified and that they may have to attend for cross-examination. In this context the judgment of Brooke LJ in Moat Housing Group-South Ltd v Harris [2006] QB 606, paras 131–140 is in point. Brooke LJ was rightly critical of anonymous hearsay witnesses stating that they do not wish to identify themselves for fear of reprisals without, in many cases, being at all specific about the reasons for their fear. The willingness of a civil court to admit hearsay evidence carries with it inherent dangers. It is much more difficult for a court to assess the truth of what they are being told if the original maker of the statement does not attend to be cross-examined. More attention should be paid by claimants to the need to state by convincing direct evidence why it is not reasonable and practicable to produce the original maker of the statement as a witness. Justices should have these matters well in mind. The use of the words “if any” in section 4 of the 1995 Act shows that some hearsay evidence may be given no weight at all. Credible direct evidence of a defendant in an application for a closure order may well carry greater weight than uncross-examined hearsay from an anonymous witness or several anonymous witnesses.
It may be that hearsay evidence of this kind is technically admissible under the 1995 Act whatever its deficiencies. But a magistrates' court is much more likely to be satisfied of the matters in section 2(3) of the 2003 Act if the application is supported by direct evidence of witnesses available for cross-examination; and, if there is to be hearsay evidence, if Brooke LJ's admonitions are followed, and if what is served and adduced is first hand and complete - as it might be a full version of a direct witness statement leaving out details of identity. If what is relied on is oral statements to a police officer, the officer should give direct evidence of what was said and the circumstances in which it was said.'
[Those interested reliance on anonymous hearsay evidence - see also: (a) McCann v Crown Court at Manchester [2003] 1 AC 787, especially Lord Steyn, paragraphs 35-36 and Lord Hutton paragraphs 112-113; (b) Newman v Commissioner of the Police of the Metropolis [2009] EWHC 1642 (Admin), paragraph 1.16 - 1.17, and 1.36; and (c) Chief Constable of Lancashire v Wilson [2015] EWHC 2763 (QB), paragraph 87]
(3) May LJ in Cleary also had to set out the requirement to serve a hearsay notice not less than 21 days before the relevant hearing. At paragraph 32, May LJ in Cleary said:
'...Rule 3 of the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681), which were made pursuant to the 1995 Act, provides that a party who desires to give hearsay evidence at a hearing must serve a hearsay notice on every other party not less than 21 days before the date fixed for the hearing. Rule 3(4) stipulates what a hearsay notice must state. Rule 4 provides for the court to allow, on application, another party to call and cross-examine the maker of a statement whom it is not proposed to call. The rule provides a timescale for doing this. ... Rule 3(2) provides that the court or the justices' clerk may on the application of a party to the proceedings make a direction substituting a different time period from the 21 days in rule 3(1). ... if the [Hearsay Adducer] intend to rely on hearsay evidence, they will have to make an application for a direction under rule 3(2) to reduce the 21-day period. ... If the court accedes to the application, the stipulated period for serving the hearsay notice will need to be sufficiently in advance of the adjourned hearing to enable the defendant fairly to deal with it, including making an application of the kind referred to in rule 4....rule 5 , where a party wishes to attack the credibility of the person who made the statement tendered as hearsay....'
For completeness, the issue May LJ in Cleary in paragraph 32 was grappling with, was the very short time period between: (a) the application for a closure order (the issuance/service of the closure notice); and (b) the first hearing. The first hearing is suppose to be 48 hours after the application, and is suppose to be an effective hearing. Which did not 'fit' with a hearsay notice needing (unless the Court, reduced the time period) to be served at least 21 days before the (effective) hearing. So readers can see the above quotation extract, in its original context, paragraph 32 of Cleary in its entirety is set out below:
'There is a further problem with hearsay evidence. Rule 3 of the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681), which were made pursuant to the 1995 Act, provides that a party who desires to give hearsay evidence at a hearing must serve a hearsay notice on every other party not less than 21 days before the date fixed for the hearing. Rule 3(4) stipulates what a hearsay notice must state. Rule 4 provides for the court to allow, on application, another party to call and cross-examine the maker of a statement whom it is not proposed to call. The rule provides a timescale for doing this. The 21 days in rule 3(1) does not fit with the shorter expected statutory timetable for the hearing of applications for closure orders. Rule 3(2) provides that the court or the justices' clerk may on the application of a party to the proceedings make a direction substituting a different time period from the 21 days in rule 3(1) . These rules cannot be complied with before the first 48-hour hearing of the application for a closure order. Further, if the police intend to rely on hearsay evidence, they will have to make an application for a direction under rule 3(2) to reduce the 21-day period. They would, I imagine, want to make the application at the first hearing and may need to serve an application to that end with the closure notice. If the court accedes to the application, the stipulated period for serving the hearsay notice will need to be sufficiently in advance of the adjourned hearing to enable the defendant fairly to deal with it, including making an application of the kind referred to in rule 4 . There are further timing problems with rule 5 , where a party wishes to attack the credibility of the person who made the statement tendered as hearsay. Those who are responsible for these rules may wish to address these problems. Meanwhile, magistrates' courts should act fairly in accordance with their spirit.'
In addition, a short summary was given by Gross J (with whom Smith LJ agreed - paragraph 23) in M v DPP [2007] EWHC 1032 (Admin), at paragraphs 11, 12 and 13:
'Section 1 of the Act provides that in civil proceedings evidence shall not be excluded on the grounds that it is hearsay. Section 2 provides for safeguards in relation to hearsay evidence. Section 2(1) of the Act provides for the giving of notice of the proposal to adduce hearsay evidence, and such particulars of, or relating to the evidence, as is reasonable and practicable in the circumstances.
12. Subsection 2(4) of the Act provides that a failure to comply with subsection (1), or with rules of court made pursuant to the statute, does not affect the admissibility of the evidence but may be taken into account by the court:
“(a) in considering the exercise of its powers with respect to the course of proceedings and costs, and
(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.”
Section 4 provides a number of considerations relevant to the weight to be given to hearsay evidence.
13. So far as concerns the rules, rule 3 deals with hearsay notices and, in particular, rule 3(4) provides that a hearsay notice must:
“(d) identify the hearsay evidence;
(e) identify the person who made the statement which is to be given in evidence; and
(f) state why that person will not be called to give oral evidence.”'
Later Cross J in M v DPP said, at paragraph 18(2):
'...nothing I say should lend support to the notion that the requirements of the Act and the rules are mere formalities or technicalities. So much is certainly clear from the authority... R v W and Another [2007] 1 WLR 339, especially at paragraphs 37 and 38.'
In Chief Constable of Lancashire v Wilson [2015] EWHC 2763 (QB), Kerr J said:
'...to consider the position in relation to hearsay evidence. It is common ground that in civil proceedings hearsay evidence is admissible under the Civil Evidence Act 1995...It was common ground that the weight attached to hearsay evidence will be affected by the factors set out in section 4 of the Civil Evidence Act 1995. Those statutory provisions are supplemented by rules of court which enable a party wishing to cross-examine the maker of a hearsay statement to seek an order directing his or her attendance at court to answer questions.'
[4a] In Chief Constable of Lancashire v Wilson [2015] EWHC 2763 (QB), Kerr J said:
'...to consider the position in relation to hearsay evidence. It is common ground that in civil proceedings hearsay evidence is admissible under the Civil Evidence Act 1995, while in criminal cases it is admissible in more restricted circumstances; for example, those set out in sections 114 to 116 in the Criminal Justice Act 2003.'
Readers will need to check that these provisions continue to apply to hearsay evidence in criminal proceedings.
[4b] In the Civil Evidence Act 1995, section 9 is entitled 'Proof of records of business or public authority' and provides:
'(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.
(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong. For this purpose-
(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and
(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.
(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.
(4) In this section-
“records” means records in whatever form;
“business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;
“officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and
“public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.
(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.'
In R. v W [2006] EWCA Crim 686; [2007] 1 WLR 339, the Court of Appeal (Longmore LJ, Aikens J and Judge Globe QC) said (Aikens J giving the judgment of the Court of Appeal), at paragraph 38:
'...if a party wishes to rely on such documents, then they should be accompanied by a certificate to the effect that they are part of the records of a public authority, which is signed by an officer of the authority: section 9(2). That requirement can be dispensed with by a court if it thinks it appropriate in “the circumstances of the case”: section 9(5).'
[4c] In the Magistrates Court Rules 1981/552, r.3A is entitled 'Case Management' and reads:
'(1) The court must actively manage the case. That includes-
(a) the early identification of the real issues;
(b) the early identification of the needs of witnesses;
(c) achieving certainty as to what must be done, by whom and when, in particular by the early setting of a timetable for the progress of the case;
(d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion and avoiding unnecessary hearings;
(g) encouraging the participants to co-operate in the progression of the case; and
(h) making use of technology, including live links.
(2) The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.
(3) Each party must-
(a) actively assist the court in managing the case without, or if necessary with, a direction; and
(b) apply for a direction if needed to assist with the management of the case.
(4) At the beginning of the case each party must, unless the court otherwise directs-
(a) nominate an individual responsible for progressing that case; and
(b) tell other parties and the court who he is and how to contact him.
(5) In fulfilling its duty under paragraphs (1) and (2), the court must where appropriate-
(a) nominate a court officer responsible for progressing the case; and
(b) make sure the parties know who he is and how to contact him.
(6) In this rule a person nominated under paragraphs (4) and (5) is called a case progression officer. A case progression officer must-
(a) monitor compliance with directions;
(b) make sure that the court is kept informed of events that may affect the progress of that case;
(c) make sure that he can be contacted promptly about the case during ordinary business hours;
(d) act promptly and reasonably in response to communications about the case; and
(e) if he will be unavailable, appoint a substitute to fulfil his duties and inform the other case progression officers
(7) In fulfilling its duty under paragraph (2) actively to manage the case the court may give any direction and take any step unless that direction or step would be inconsistent with legislation, including these Rules. In particular, the court may-
(a) nominate a magistrate or justices' legal adviser to manage the case;
(b) give a direction on its own initiative or on application by a party;
(c) ask or allow a party to propose a direction;
(d) for the purpose of giving directions, receive applications and representations by letter, by telephone or by any other means of electronic communication, and conduct a hearing by such means;
(e) give a direction without a hearing;
(f) fix, postpone, bring forward, extend or cancel a hearing;
(g) shorten or extend (even after it has expired) a time limit fixed by a direction;
(h) require that issues in the case should be determined separately, and decide in what order they will be determined; and
(i) specify the consequences of failing to comply with a direction.
(8) Any power to give a direction under this rule includes a power to vary or revoke that direction.
(9) A party may apply to vary a direction if-
(a) the court gave it without a hearing;
(b) the court gave it at a hearing in that party's absence; or
(c) circumstances have changed.
(10) A party who applies to vary a direction must-
(a) apply as soon as practicable after becoming aware of the grounds for doing so; and
(b) give as much notice to the other parties as the nature and urgency of the application permits.
(11) The parties may agree to vary a time limit fixed by a direction, but only if-
(a) the variation will not-
(i) affect the date of any hearing that has been fixed, or
(ii) significantly affect the progress of the case in any other way; and
(b) the court has not prohibited variation by agreement.
(12) The court's case progression officer must refer any agreement by the parties to vary a time limit under paragraph (11) to the court if he doubts the condition in paragraph (11) is satisfied.
(13) At every hearing, if a case cannot be concluded there and then the court must give directions so that it can be concluded at the next hearing or as soon as possible after that.
(14) At every hearing the court must, where relevant-
(a) if a party is absent, decide whether to proceed nonetheless;
(b) set, follow or revise a timetable for the progress of the case, which may include a timetable for any hearing;
(c) in giving directions, ensure continuity in relation to the court and to the parties' representatives where that is appropriate and practicable; and
(d) where a direction has not been complied with, find out why, identify who was responsible, and take appropriate action.
(15) In fulfilling his duty under paragraph (3) actively to assist the court in managing the case, each party must-
(a) comply with directions given by the court;
(b) take every reasonable step to make sure that that party's witnesses will attend when they are needed;
(c) make appropriate arrangements to present any written or other material; and
(d) promptly inform the court and the other parties of anything that may-
(i) affect the date or duration of any hearing, or
(ii) significantly affect the progress of the case in any other way.
(16) The court may require a party to give a certificate of readiness.
(17) In order to manage the case-
(a) the court must establish, with the active assistance of the parties, what disputed issues they intend to explore; and
(b) the court may require a party to identify-
(i) which witnesses will give oral evidence,
(ii) the order in which those witnesses will give their evidence;
(iii) whether that party requires an order compelling the attendance of a witness;
(iv) what arrangements are desirable to facilitate the giving of evidence by a witness;
(v) what arrangements are desirable to facilitate the participation of any other person;
(vi) what written evidence that party intends to introduce;
(vii) what other material, if any, that party intends to make available to the court in the presentation of the case;
(viii) whether that party intends to raise any point of law that could affect the conduct of the case; and
(ix) what timetable that party proposes and expects to follow.
(18) The court must make available to the parties a record of directions given.'
There are only 2 reported cases on r.3A - they are:
(1) Naris v Tower Hamlets LBC [2018] EWHC 2768 (Admin); and
(2) Love v National Crime Agency [2016] Lloyd's Rep. F.C. 424
[5] Two points here:
(1) In a somewhat 'belt and braces' approach, in the Civil Evidence Act 1995 ('1995 Act'), section 13, entitled 'Interpretation', states:
'In this Act
“civil proceedings” has the meaning given by section 11 and “court” and “rules of court” shall be construed in accordance with that section;'
(2) Lloyd LJ in Daltel Europe Ltd v Makki [2006] EWCA Civ 94; [2006] 1 WLR 2704 ('Deltel') said as to section 11 of the 1995 Act, at paragraph 30:
'The definition of civil proceedings in the 1995 Act may seem somewhat circular...'
Daltel was a case about discerning the nature of contempt of court proceedings (criminal or civil in nature). Those interested in the line between criminal proceedings and civil proceedings, should read: (1) Lloyd LJ in Daltel, paragraphs 30 onwards; (2) Chief Constable of Lancashire v Wilson [2015] EWHC 2763 (QB); and (3) McCann v Crown Court at Manchester [2003] 1 AC 787.
[6] In Chief Constable of Lancashire v Wilson [2015] EWHC 2763 (QB), Kerr J held (in civil proceedings in the Magistrates Court for a anti gang-related/gang membership/ gang activities injunction - under the Policing and Crime Act 2009, 2.34), at paragraph 92:
'In my judgment, the admissibility of hearsay evidence does not of itself entail a breach of article 6(1) of the Convention. It is tempered by the ability of the court to direct attendance of available witnesses, to adopt appropriate case management measures to enable witnesses to be put at ease and to adjust the weight to be given to hearsay evidence where the witness does not attend. In an appropriate case, that could include deciding that the weight to be attached to such evidence is nil or negligible. That seems to me sufficient protection for the fairness of the trial process.'
[7] Please refer to The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681), rule 3(4) (England and Wales) for list of information that must be contained in the hearsay notice.
Some guidance can be given as to what might appear in a hearsay notice in 2 scenarios. That is, were the statements are in, respectively:
(1) a witness statement; and
(2) a document (other than a witness statement).
Taking those scenarios in turn:
(1) a witness statement
After the usual court proceedings header (with 'Hearsay Notice' in the tramlines), the main body of the hearsay notice might read:
'TAKE NOTICE that at the trial of this matter the [Defendant/Complainant (delete as applicable)] intends to rely on the content of/statements in the witness statement of [name] dated [date] as truth of the matters stated therein.
AND that [name] will not be called as a witness to give oral evidence at trial. The [Defendant/Complainant (delete as applicable)] does not seek to rely on the oral testimony of [name] and it is not therefore necessary, or proportionate to the benefit that can be gained from [his/her] attendance at trial to give oral evidence, for [name] to attend trial.
This notice is given pursuant to: (1) Section 2 of the Civil Evidence Act 1995; and (2) rule 3(1) of the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999.'
(2) a document (other than a witness statement)
After the usual court proceedings header (with 'Hearsay Notice' in the tramlines), the main body of the hearsay notice might read:
'TAKE NOTICE that at the trial of this matter the [Defendant/Complainant (delete as applicable)] intends to rely on the content of/statements in [name/identify the document(s) containing the statements to be relied upon] as truth of the matters stated therein. For the purposes of identification that [document(s) containing the statements to be relied upon] is [in the bundle / dated / labelled exhibit ...]
AND the said contents/statements contained in the [document(s) containing the statements to be relied upon] were made by [name]; [name] will not be called as a witness to give oral evidence at trial; and the reason why [name] will not be called to give oral evidence is [reason]
This notice is given pursuant to: (1) Section 2 of the Civil Evidence Act 1995; and (2) rule 3(1) of the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999.'
[8] The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681) commence with:
'The Lord Chancellor, in exercise of the powers conferred upon him by section 144 of the Magistrates' Courts Act 1980 and sections 2(2), 3 and 12 of the Civil Evidence Act 1995, after consultation with the Rule Committee appointed under the said section 144, hereby makes the following Rules'
[9] This article is about business rates. But for completeness, The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681) ('Hearsay Evidence Rules 1999') do not apply strictly to all civil proceeding in the Magistrates Court. In particular, to closure order applications (i.e. application by the Police to close down a property because it is linked to class A drug use, production etc). The requirement for a first hearing within 48 hours to too quick for the timetable in the Hearsay Evidence Rules 1999; see Regina (Cleary) v Highbury Corner Magistrates' Court [2006] EWHC 1869 (Admin) (Divisional Court)(May LJ and Langstaff J).
[10] The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681), rule 3(1) (England and Wales), is subject to rule 3(2) and rule 3(3), which provide, respectively:
'(2) Subject to paragraph (3), the court may make a direction substituting a different period of time for the service of the hearsay notice under paragraph (1) on the application of a party to the proceedings.
(3) The court may make a direction under paragraph (2) of its own motion.'
[11] The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681), rule 6 (England and Wales), is entitled 'Service' and reads:
'(1) Where service of a document is required by these Rules it may be effected, unless the contrary is indicated-
(a) if the person to be served is not known by the person serving to be acting by solicitor-
(i) by delivering it to him personally, or
(ii) by delivering at, or by sending it by first-class post to, his residence or his last known residence, or
(b) if the person to be served is known by the person serving to be acting by solicitor-
(i) by delivering the document at, or sending it by first-class post to, the solicitor's address for service,
(ii) where the solicitor's address for service includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents on every business day to that document exchange, or
(iii) by sending a legible copy of the document by facsimile transmission to the solicitor's office.
(2) In this rule, “first-class post” means first-class post which has been pre-paid or in respect of which pre-payment is not required.
(3) A document shall, unless the contrary is proved, be deemed to have been served-
(a) in the case of service by first-class post, on the second business day after posting,
(b) in the case of service in accordance with paragraph (1)(b)(ii), on the second business day after the day on which it is left at the document exchange, and
(c) in the case of service in accordance with paragraph (1)(b)(iii), where it is transmitted on a business day before 4 p.m., on that day and in any other case, on the next business day.
(4) In this rule, “business day” means any day other than-
(a) a Saturday, Sunday, Christmas Day or Good Friday; or
(b) a bank holiday under the Banking and Financial Dealings Act 1971, in England and Wales.'
[12] Section 3 of the Civil Evidence Act 1995 is entitled 'Power to call witness of cross-examination on hearsay statement' (this section title might have read better if the word 'of' had been 'for') and reads:
'Rules of court may provide that where a party to civil proceedings 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 him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.'
[13] The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681) contains rule 4 (England and Wales), entitled 'Power to call witness for cross-examination on hearsay evidence', which reads:
'(1) Where a party tenders as hearsay evidence a statement made by a person but does not propose to call the person who made the statement to give evidence, the court may, on application, allow another party to call and cross-examine the person who made the statement on its contents.
(2) An application under paragraph (1) must-
(a) be served on the designated officer for the court with sufficient copies for all other parties;
(b) unless the court otherwise directs, be made not later than 7 days after service of the hearsay notice; and
(c) give reasons why the person who made the statement should be cross-examined on its contents.
(3) On receipt of an application under paragraph (1)-
(a) the designated officer for the court must-
(i) unless the court otherwise directs, allow sufficient time for the applicant to comply with paragraph (4); and
(ii) fix the date, time and place of the hearing; and
(b) the designated officer for the court must-
(i) endorse the date, time and place of the hearing on the copies of the application filed by the applicant; and
(ii) return the copies to the applicant forthwith.
(4) Subject to paragraphs (5) and (6), on receipt of the copies from the designated officer for the court under paragraph (3)
(c), the applicant must serve a copy on every other party giving not less than 3 days' notice of the hearing of the application.
(5) The court may give directions as to the manner in which service under paragraph (4) is to be effected and may, subject to the designated officer's giving notice to the applicant, alter or dispense with the notice requirement under paragraph (4) if the court considers it is in the interests of justice to do so.
(6) The court may hear an application under paragraph (1) ex parte if it considers it is in the interests of justice to do so.
(7) Subject to paragraphs (5) and (6), where an application under paragraph (1) is made, the applicant must file with the court a statement at or before the hearing of the application that service of a copy of the application has been effected on all other parties and the statement must indicate the manner, date, time and address at which the document was served.
(8) The court must notify all parties of its decision on an application under paragraph (1).'
[14] Section 5 of the Civil Evidence Act 1995 is entitled 'Competence and credibility' and subsection 5(1) reads:
'Hearsay evidence shall not be admitted in civil proceedings if or to the extent that it is shown to consist of, or to be proved by means of, a statement made by a person who at the time he made the statement was not competent as a witness. For this purpose “not competent as a witness” means suffering from such mental or physical infirmity, or lack of understanding, as would render a person incompetent as a witness in civil proceedings; but a child shall be treated as competent as a witness if he satisfies the requirements of section 96(2)(a) and (b) of the Children Act 1989 (conditions for reception of unsworn evidence of child).'
[15] Section 5 of the Civil Evidence Act 1995 is entitled 'Competence and credibility' and subsection 5(1) reads (so far as material):
'but a child shall be treated as competent as a witness if he satisfies the requirements of section 96(2)(a) and (b) of the Children Act 1989 (conditions for reception of unsworn evidence of child).'
[16] Section 5 of the Civil Evidence Act 1995 is entitled 'Competence and credibility' and subsection 5(2) reads:
'Where in civil proceedings 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-
(a) evidence which if he had been so called would be admissible for the purpose of attacking or supporting his credibility as a witness is admissible for that purpose in the proceedings; and
(b) ...
Provided that evidence may not be given of any matter of which, if he had been called as a witness and had denied that matter in cross-examination, evidence could not have been adduced by the cross-examining party.'
The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681) contains rule 5, entitled 'Credibility and previous inconsistent statements', which reads:
(1) If-
(a) a party tenders as hearsay evidence a statement made by a person but does not call the person who made the statement to give oral evidence, and
(b) another party wishes to attack the credibility of the person who made the statement ..., that other party must notify the party tendering the hearsay evidence of his intention.
(2) Unless the court or the justices' clerk otherwise directs, a notice under paragraph (1) must be given not later than 7 days after service of the hearsay notice and, in addition to the requirements in paragraph (1), must be served on every other party and a copy filed in the court.
(3) If, on receipt of a notice under paragraph (1), the party referred to in paragraph (1)(a) calls the person who made the statement to be tendered as hearsay evidence to give oral evidence, he must, unless the court otherwise directs, notify the court and all other parties of his intention.
(4) Unless the court or the justices' clerk otherwise directs, a notice under paragraph (3) must be given not later than 7 days after the service of the notice under paragraph (1).' [bold added]
There is therefore an obligation on the Other Side (called in rule 5, the 'another party') to give notice (to the Hearsay Adducer, if the Other Side '...wishes to attack the credibility of the person who made the statement...' (rule 5(1)(b)) This notice (from the Other Side) can be labelled a 'Credibility Notice'. The Hearsay Adducer, in response to a 'Credibility Notice', can serve a further notice, that the Hearsay Adducer (now) will call the witness to give oral evidence. This further notice can be labelled 'Will Call Notice'.
[17] Section 6 of the Civil Evidence Act 1995 is entitled 'Previous statements of witness' and reads:
'(1) Subject as follows, the provisions of this Act as to hearsay evidence in civil proceedings apply equally (but with any necessary modifications) in relation to a previous statement made by a person called as a witness in the proceedings.
(2) A party who has called or intends to call a person as a witness in civil proceedings may not in those proceedings adduce evidence of a previous statement made by that person, except-
(a) with the leave of the court, or
(b) for the purpose of rebutting a suggestion that his evidence has been fabricated. This shall not be construed as preventing a witness statement (that is, a written statement of oral evidence which a party to the proceedings intends to lead) from being adopted by a witness in giving evidence or treated as his evidence.
(3) Where in the case of civil proceedings section 3, 4 or 5 of the Criminal Procedure Act 1865 applies, which make provision as to-
(a) how far a witness may be discredited by the party producing him,
(b) the proof of contradictory statements made by a witness, and
(c) cross-examination as to previous statements in writing,
this Act does not authorise the adducing of evidence of a previous inconsistent or contradictory statement otherwise than in accordance with those sections. This is without prejudice to any provision made by rules of court under section 3 above (power to call witness for cross-examination on hearsay statement).
(4) Nothing in this Act affects any of the rules of law as to the circumstances in which, where a person called as a witness in civil proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in the proceedings.
(5) Nothing in this section shall be construed as preventing a statement of any description referred to above from being admissible by virtue of section 1 as evidence of the matters stated.'
The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681) contains rule 5, entitled 'Credibility and previous inconsistent statements', which reads:
(1) If-
(a) a party tenders as hearsay evidence a statement made by a person but does not call the person who made the statement to give oral evidence, and
(b) another party wishes to... allege that the person who made the statement made any other statement inconsistent with it, that other party must notify the party tendering the hearsay evidence of his intention.
(2) Unless the court or the justices' clerk otherwise directs, a notice under paragraph (1) must be given not later than 7 days after service of the hearsay notice and, in addition to the requirements in paragraph (1), must be served on every other party and a copy filed in the court.
(3) If, on receipt of a notice under paragraph (1), the party referred to in paragraph (1)(a) calls the person who made the statement to be tendered as hearsay evidence to give oral evidence, he must, unless the court otherwise directs, notify the court and all other parties of his intention.
(4) Unless the court or the justices' clerk otherwise directs, a notice under paragraph (3) must be given not later than 7 days after the service of the notice under paragraph (1).' [bold added]
There is therefore an obligation on the Other Side (called in rule 5, the 'another party') to give notice (to the Hearsay Adducer, if the Other Side '...wishes to ... allege that the person who made the statement made any other statement inconsistent with it' (rule 5(1)(b)) This can be labelled a 'Previous Inconsistent Statement Notice'. The Hearsay Adducer, in response to a 'Previous Inconsistent Statement Notice', can serve a further notice, that the Hearsay Adducer (now) will call the witness to give oral evidence. This further notice can be labelled 'Will Call Notice'.
[18] In Clingham v Kensington and Chelsea RLBC [2001] EWHC Admin 1; (2001) 165 J.P. 322 (Queens Bench Divisional Court: Schiemann LJ; Poole J), Schiemann LJ (with whom Poole J agreed) also said, at paragraph 19:
'Nor do I think it a sensible course for a court to look at particular evidence and, if it comes to the conclusion that its weight in all the circumstances is so negligible that it is not probative, then to exclude it. This is an artificial complication. The evidence can be admitted. If its weight is slight or it is not probative the judge can say so. If he comes to an unlawful conclusion his decision can be appealed.'
[19] Section 8 of the Civil Evidence Act 1995 is entitled 'Proof of statements contained in documents' and reads:
'(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved-
(a) by the production of that document, or
(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.
(2) It is immaterial for this purpose how many removes there are between a copy and the original.'
[20] In the Civil Evidence Act 1995, subsection 1(3) provides that:
'Nothing in this Act affects the admissibility of evidence admissible apart from this section.'
Subsection 1(4) provides:
'The provisions of sections 2 to 6 (safeguards and supplementary provisions relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this section, notwithstanding that it may also be admissible by virtue of this section.'
In other words, if hearsay evidence is admissible, apart from section 1 of the 1995 Act, then none of the provisions in sections 2 to 6 inclusive apply. This is despite the fact that section 1 of the 1995 Act might also make the hearsay evidence admissible.