Failure to comply with hearsay notice requirements (Civil Evidence Act 1995, s 2(4); CPR 33.2)
In a multi-track claim by Lindqvist Shipping Ltd against Barrow Port Services Ltd, Lindqvist served a signed witness statement of a former employee, Dariusz Nowak, on time, in accordance with the court's directions. Mr Nowak has since emigrated and will not attend trial. Lindqvist intends to rely on his statement at trial, but its solicitors never told Barrow that Mr Nowak would not be called or why. At trial, Barrow objects that the statement is inadmissible.
Which of the following best describes the position?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: The statement is admissible, but the failure may count on case management, costs and the weight given to it.
THE RULE TO REMEMBER
Failure to give hearsay notice does not make the evidence inadmissible but may affect case management, costs and the weight given to it (CEA 1995, s 2(4)).
Failure to comply with hearsay notice requirements (Civil Evidence Act 1995, s 2(4); CPR 33.2)
Under s 1(1) of the Civil Evidence Act 1995, evidence in civil proceedings shall not be excluded on the ground that it is hearsay. Mr Nowak's statement, tendered without calling him, is hearsay. CPR 33.2(1)(b) and (2) give effect to the notice duty in s 2(1) of the Act. Where a party relies on the witness statement of a person who will not give oral evidence, it must, when serving the statement, inform the other parties that the witness is not being called and give the reason. Lindqvist did not do this. However, s 2(4) of the Act provides that a failure to comply with the notice duty, or with rules of court about it, does not affect the admissibility of the evidence. The court may take the failure into account when exercising its powers over the course of proceedings and costs, and as a matter adversely affecting the weight given to the evidence under s 4. The statement is therefore admissible, but its weight may be reduced.
Why A is wrong: Section 1(1) CEA 1995 provides that civil evidence is not excluded on the ground that it is hearsay.
Why B is wrong: Section 2(4) CEA 1995 provides that failure to give notice does not affect admissibility.
Why C is wrong: Hearsay weight is assessed under s 4 CEA 1995, and the failure to give notice may count against its weight.
Why D is wrong: An application to cross-examine under CPR 33.4 is an option for the opponent, not a condition of admissibility.
A little more practice done.
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