PROVING THINGS 1: CIVIL EVIDENCE ACT NOTICES WILL NOT CUT IT

February 8, 2016 · by · in Civil evidence, Uncategorized, Witness statements

The really surprising thing about going to court (for some people) is that, you have to prove things.  Judges work on the basis of evidence.  On the whole judges prefer live evidence from witnesses who are cross-examined. I The case of Fresca-Judd -v- Golovina* (QBD) Holgate J 05/02/2016 reported on Lawtel today provides a good example of what happens when witnesses are not present and a party relies on Civil Evidence Act notices alone.

KEY POINTS

  • The claimant failed to bring live evidence on a factual matter where it bore the burden of proof.
  • The defendant’s live evidence was preferred over the Civil Evidence Act notices served by the Defendant.

THE CASE

The claimant landlord was suing the defendant tenant following water damage to a rented flat. There was an issue of law as to whether the landlord could recover when the tenancy had insurance cover in place.

THE FACTUAL DISPUTE

The surprising aspect of this case is the scant evidence that the claimant called to prove its case. There was a dispute of fact as to whether the heating had been left on.  The tenant stated that it was left on.

By way of response the claimant relied on Civil Evidence Act notices from a plumber and an estate agent who had made a note that they had been told that the heating had been turned off.

  • Neither the plumber or the agent were called to give evidence.
  • The estate agent’s note was hearsay evidence.
  • It was significant that there was no explanation for the failure to call the estate agent.
  • The record conflicted with the tenant’s live evidence which had not been undermined by cross-examination.
  • The claimant landlord had the burden of proof in establishing this and had failed to discharge the burden.

THE JUDGMENT

The judge reviewed the claimant’s evidence in detail. Most of the key evidence was contained in Civil Evidence Act notices or in a screenshot recording an alleged conversation. The judge had to weigh up the competing evidence.

103. I then turn to section 4 of the Civil Evidence Act and in particular the non-exhaustive considerations set out in sub-section 2. First of all under sub-paragraph (c) the screenshot involves multiple hearsay. Second, under sub-paragraph (a) of course the late Mr Sullivan cannot be called give evidence. But there is no explanation in evidence as to why Mr Clyesdale (or even Mr Sheppard) was not called and that is a significant factor, particularly in view of the response from the defendant’s solicitor by letter dated 4 April 2014. As for sub-paragraph (b) it appears that the record was inputted into Hampton’s computer system on the same day as the conversation. So far as paragraphs (d), (e) and (f) are concerned, they do not apply so as to reduce the weight otherwise to be given to the statement.
104. There is a head on conflict between the contents of the screenshot and the defendant’s live evidence. But, as I have already noted, her explanation in live evidence is consistent with that which was said by her solicitor in April 2014. In my judgment, cross-examination did not undermine her evidence or reveal her to be unreliable on these matters as a witness. Furthermore, it is highly surprising that in early 2010 no reference was made to any statement by Mr Sullivan, despite the fact that there were several opportunities to do so. That reinforces my concerns that the claimant’s insurers have not called Mr Clysedale and have given no proper explanation for this, which is all the more surprising in a case where the legal expenses are substantial in relation to the sum claim. I also note that no witness statement from Mr Sheppard has been served.
105. Given the weaknesses in the the claimant’s evidence and the burden of proof borne by the claimant, I am wholly unable to say that Ms. Golovina’s evidence should not be accepted on this issue. Accordingly, I find on the balance of probabilities that when she left the cottage on 27 December 2009 she did leave the heating system on. The possibility that the heating system failed subsequently cannot reasonably be excluded.

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