There are numerous reasons why a witness may be unable or unwilling to assist a party in litigation, either by providing a witness statement, attending court or both. In such circumstances, careful consideration should be given to how that evidence can be adduced.
If you are unable to obtain a statement from a witness then consideration should be given to producing a witness summary pursuant to CPR 32.9. As the name suggests, the witness summary should set out the evidence that a witness can provide, if it is known. If the evidence is not known, the witness summary should set out the matters on which the witness will be questioned at trial. A witness summary should be set out in the same format and contain the same information as a witness statement.
Any witness summary should be served within the same deadline set for witness statements. There is no absolute right to rely upon a witness summary. Any party seeking to rely on a witness summary should apply, without notice, for the court’s permission to serve it. Failure to serve a witness summary in accordance with CPR 32.9 will mean that the witness cannot be called to give the evidence without specific permission from the court. Provided the witness summary is served in accordance with the rule, it will not fall within CPR 32.10 and that witness can be called without needing the court’s permission.
If a witness summary is not served in accordance with CPR 32.9, an application for relief from sanctions or permission to call the witness will have to be made. In pragmatic terms, it is unlikely to be problematic if the witness summary was served on time but the court’s permission has not been obtained. In this case, the prejudice to the other party is minimal as it has had the opportunity to consider the contents of the witness summary and raise objections to it. It also allows the parties to properly plan/consider the trial timetable. It may be more difficult if a witness summary was served late (especially close to a trial) or not at all.
Parties need to give early consideration as to whether it will be necessary to serve a witness summary and they should not overlook the specific requirement to obtain the court’s permission to serve the same.
However, serving the witness summary is only the first hurdle when dealing with a witness who is unable or unwilling to provide a statement. Assuming you have correctly served the witness summary, you need to ensure that the witness attends court to provide evidence. This can be done by obtaining a witness summons requiring the witness to attend court, but be mindful of the potential for calling a “hostile” witness; you may not be sure of their evidence.
It is also possible that a witness summary could contain hearsay evidence, in which case you may need to obtain a hearsay notice, as well as serving a witness summary. This is particularly so when the witness does not intend to attend court to give oral evidence.
Historically there was a general rule that hearsay evidence would not be admissible, but this was abolished by the Civil Evidence Act 1995 (CEA 1995). The CEA 1995 is set out in Practice Direction 33 of the Civil Procedure Rules (CPR), and CPR 33.1 – 33.5 sets out provisions for dealing with hearsay evidence.
“… a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated’.
Some examples of hearsay evidence include:
- When person A makes a witness statement in proceedings but does not attend trial to give evidence, and therefore cannot be cross-examined by the other party.
- When person A’s evidence is that person B told them that person C had told them X,Y and Z. In this case A is giving direct evidence of what B told them, but also hearsay evidence of what C told B. This would be categorised as “first hand” hearsay, not direct evidence.
- Person D gives evidence that A had told them about what B had told them C had said. This includes direct evidence of what A had said to D, first hand hearsay of what B had said to A and multiple hearsay of what C had said to B.
Once it has been determined that it is intended to rely on hearsay evidence, consideration should be given as to whether notice to rely on hearsay evidence needs to be given to the other party. There are three potential avenues a party could follow:
- No notice required. If the hearsay is contained in the witness statement of a witness who intends to attend court to give oral evidence, there is no need to give any specific notice. The serving of the witness statement is deemed to be your notice to rely on any hearsay that is contained in the statement.
- Informal notice required. If the hearsay is contained in a witness statement but the witness will not be attending trial to give oral evidence then informal notice should be given to the other party. This should be done at the same time the statement is served. Informal notice can be given in the covering letter, which must inform the other party that the witness will not be called to give oral evidence and explain the reason for this (for example, they are too ill).
- Formal notice. If the hearsay evidence will be given by a witness who has not made a witness statement but who will be giving oral evidence at trial, you must serve formal notice on the other party. Such notice must be served by the latest date for service of witness statements and must:
- identify the hearsay;
- state that the party serving the notice proposes to rely on hearsay evidence at the trial;
- state the reason why a witness statement has not been produced or why the witness will not be called to give evidence at trial (if applicable); and
- if the hearsay is contained in a document (for example, in a witness summary), a copy of that document must be provided to every party who requests it.
Receiving a hearsay notice
If you receive a hearsay notice (be it formal or informal), you need to act quickly as you only have 14 days to respond.
Your response could attack the credibility of the person providing the hearsay evidence. This would require you to apply to the court to call evidence. In such circumstances you must, within 14 days of receiving the hearsay notice, give notice of your intention to apply to call evidence as to the credibility of the party intending to give the hearsay evidence.
You response could also include an application to cross-examine the witnesses referred to in the hearsay notice. If you wish to apply to cross-examine the witness, the application should be made within 14 days. The following factors need to be considered before proceeding with an application:
- How many witnesses are already giving evidence, and does their evidence overlap with any issues which are the subject of hearsay evidence?
- How central is the witness to the issues in dispute?
Are there good reasons that the witness is unable to attend trial to give evidence (if so, any application to cross-examine is unlikely to succeed)?
- Is there any other way that witness evidence could be proved at trial (for example, by video-link (CPR 32.3) if they are abroad)?
- How reasonable is it to challenge the notice? Challenging the hearsay notice will incur costs. If the challenge is unreasonable, it could result in an adverse costs order.
- The courts will assess how much weight should be given to hearsay evidence.
Ensure you allow plenty of time for preparation and consideration of witness evidence. If there is a witness who is unable or unwilling to provide evidence, it may be worthwhile trying to speak to them informally to get an idea of what their evidence will be. If necessary, you can then at least prepare a witness summary, and ultimately summon them to give evidence at trial.
If you are intending to serve a witness summary, ensure it is served on time. Do not forget to make the application seeking permission for the same. Failure to do so will involve having to make an application for relief and consideration of the three stage Denton test. As such, any application should be made as soon as possible.
Generally, if a witness will be attending trial to give evidence, there will be no need to file a hearsay notice. However, a hearsay notice is likely to be needed in any instance where a witness is not giving evidence at trial.
On receipt of a hearsay notice, do not put off dealing with it until nearer the trial. Trials will often be listed for several months after the deadline for service of witness statements. The deadline for responding to a hearsay notice is only 14 days.
This article first appeared on the Practical Law Dispute Resolution Blog, June 2017.