See also Practice Direction
33,
Part
33
MISCELLANEOUS RULES ABOUT EVIDENCE
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Introductory
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33.1 |
In this Part –
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‘hearsay’ means a statement made,
otherwise than by a person while giving oral evidence in proceedings, which is
tendered as evidence of the matters stated; and
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references to hearsay include hearsay of whatever
degree.
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Notice of intention to rely on hearsay
evidence
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33.2 |
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Where a party intends to rely on hearsay evidence at
trial and either –
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that evidence is to be given by a witness giving
oral evidence; or
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that evidence is contained in a witness statement
of a person who is not being called to give oral evidence;
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that party complies with section 2(1)(a) of the Civil
Evidence Act 19951
serving a witness statement on the other parties in
accordance with the court’s order.
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Where paragraph (1)(b) applies, the party intending to
rely on the hearsay evidence must, when he serves the witness statement
–
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inform the other parties that the witness is not
being called to give oral evidence; and
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give the reason why the witness will not be
called.
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In all other cases where a party intends to rely on
hearsay evidence at trial, that party complies with section 2(1)(a) of the
Civil Evidence Act 1995Acts by serving a notice on the other parties which
–
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identifies the hearsay evidence;
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states that the party serving the notice proposes
to rely on the hearsay evidence at trial; and
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gives the reason why the witness will not be
called.
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The party proposing to rely on the hearsay evidence
must –
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serve the notice no later than the latest date
for serving witness statements; and
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if the hearsay evidence is to be in a document,
supply a copy to any party who requests him to do so.
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Circumstances in which notice of intention to rely on
hearsay evidence is not required
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33.3 |
Section 2(1) of the Civil Evidence Act 1995Acts (duty to
give notice of intention to rely on hearsay evidence) does not apply
–
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to evidence at hearings other than trials;
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to an affadavit or witness statement which is to
be used at trial but which does not contain hearsay evidence;
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to a statement which a party to a probate action
wishes to put in evidence and which is alleged to have been made by the person
whose estate is the subject of the proceedings; or
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where the requirement is excluded by a practice
direction.
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Power to call witness for cross-examination on hearsay
evidence
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33.4 |
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Where a party –
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proposes to rely on hearsay evidence; and
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does not propose to call the person who made the
original statement to give oral evidence,
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the court may, on the application of any other party,
permit that party to call the maker of the statement to be cross-examined on
the contents of the statement.
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An application for permission to cross-examine under
this rule must be made not more than 14 days after the day on which a notice of
intention to rely on the hearsay evidence was served on the applicant.
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Credibility
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33.5 |
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Where a party –
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proposes to rely on hearsay evidence; but
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does not propose to call the person who made the
original statement to give oral evidence; and
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another party wishes to call evidence to attack
the credibility of the person who made the statement,
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the party who so wishes must give notice of his
intention to the party who proposes to give the hearsay statement in
evidence.
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A party must give notice under paragraph (1) not more
than 14 days after the day on which a hearsay notice relating to the hearsay
evidence was served on him.
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Use of plans, photographs and models as
evidence
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33.6 |
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This rule applies to evidence (such as a plan,
photograph or model) which is not –
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contained in a witness statement,
affidavit(GL) or expert’s report;
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to be given orally at trial; or
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evidence of which prior notice must be given
under rule 33.2.
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This rule includes documents which may be received in
evidence without further proof under section 9 of the Civil Evidence Act 1995Acts2.
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Unless the court orders otherwise the evidence shall
not be receivable at a trial unless the party intending to put it in evidence
has given notice to the other parties in accordance with this rule.
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Where the party intends to use the evidence as evidence
of any fact then, except where paragraph (6) applies, he must give notice not
later than the latest date for serving witness statements.
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He must give notice at least 21 days before the hearing
at which he proposes to put in the evidence, if –
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there are not to be witness statements; or
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he intends to put in the evidence solely in order
to disprove an allegation made in a witness statement.
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Where the evidence forms part of expert evidence, he
must give notice when the expert’s report is served on the other
party.
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Where the evidence is being produced to the court for
any reason other than as part of factual or expert evidence, he must give
notice at least 21 days before the hearing at which he proposes to put in the
evidence.
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Where a party has given notice that he intends to put
in the evidence, he must give every other party an opportunity to inspect it
and to agree to its admission without further proof.
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Evidence of finding on question of foreign
law
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33.7 |
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This rule sets out the procedure which must be followed
by a party who intends to put in evidence a finding on a question of foreign
law by virtue of section 4(2) of the Civil Evidence Act 1972Acts3.
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He must give any other party notice of his
intention.
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He must give the notice –
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if there are to be witness statements, not later
than the latest date for serving them; or
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otherwise, not less than 21 days before the
hearing at which he proposes to put the finding in evidence.
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The notice must –
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specify the question on which the finding was
made; and
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enclose a copy of a document where it is reported
or recorded.
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Evidence of consent of trustee to act
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33.8 |
A document purporting to contain the written consent of
a person to act as trustee and to bear his signature verified by some other
person is evidence of such consent.
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Human Rights
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33.9 |
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This rule applies where a claim is
–
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for a remedy under section 7 of the Human Rights
Act 1998 in respect of a judicial act which is alleged to have infringed the
claimant’s Article 5 Convention rights; and
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based on a finding by a court or tribunal that
the claimant’s Convention rights have been infringed.
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The court hearing the claim
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may proceed on the basis of the finding of that
other court or tribunal that there has been an infringement but it is not
required to do so, and
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may reach its own conclusion in the light of that
finding and of the evidence heard by that other court or tribunal.
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