one couple man and woman whispering at ear

There is a common perception that hearsay is worth next to nothing in terms of establishing the truth.  “He told me ‘x'” or “My friend will confirm ‘y'” are not the sort of phrases which solicitors are glad to hear when being briefed by a client on all the evidence available in support of a claim.  

But what does hearsay really mean in law and can it be relied upon in a civil court action?

At its lowest, hearsay can be synonymous with rumour or even gossip.  According to the Oxford Dictionaries, hearsay is “information received from other people which cannot be substantiated; rumour” or “the report of another person’s words by a witness, which is usually disallowed in a court of law.” Nonetheless, as far as its use in litigation is concerned, there is more to hearsay than immediately meets the eye.

It is certainly a traditional feature of civil litigation in England and Wales that a party’s case is to be proved by one or more witnesses giving oral testimony of their own evidence of fact (rather than hearsay) at trial.  In practice, the parties’ witness statements are often prepared and exchanged months before trial.  The statements then stand as the relevant individual’s evidence in chief, and at trial the opposition advocate has the opportunity to cross-examine the witness on that evidence. That gives the judge the best chance of assessing the credibility of what a witness says; their witness statement evidence is literally tested by oral questioning.  For those reasons, it  becomes easy to understand why hearsay evidence of what someone else has said in order to prove the truth of their account, but without the opportunity to hear the first-hand account in open court, is generally given limited weight by the judge when reaching his or her decision.

However, contrary to widespread belief, hearsay evidence[1] is frequently allowed and can be relied upon by a party in support of their case.  It may be that a witness is located abroad and it is unfeasible for them to attend trial.  It may be that the information which the absent witness has provided is not controversial and it would be disproportionate for them to attend trial.  It may even be that the witness in question needs to remain anonymous for security reasons.  In each case, the evidence will be admissible and may well be quite valuable, as long as the party relying on the statement or information notifies the other parties that the witness in question is not being called, or gives notice that hearsay evidence is contained in a particular witness statement.

Parties relying on hearsay evidence should beware, as (save where anonymity is concerned) their opponent can normally apply for permission to call the relevant witness for cross-examination themselves, or may seek to put in evidence challenging the absent witness’ credibility.

Ultimately, the best cases are proved by first-hand oral evidence, and judges much prefer to see and hear a witness, but, at least in litigation, hearsay is not always as worthless as it may first sound.

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[1] Defined in the Civil Procedure Rules 1998 as “a statement, made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated.” (CPR33.1(a))

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.