CIVIL PROCEDURE BACK TO BASICS 74: HEARSAY EVIDENCE AND SECTION 4 OF THE CIVIL EVIDENCE ACT 1995

The judgment of Deputy Master Linwood in Barnaby & Anor v Johnson (aka Smith) [2019] EWHC 3344 (Ch) provides a reminder of the terms of Section 4 of the Civil Evidence Act 1995 and an example of its application.

 

SECTION 4 OF THE CIVIL EVIDENCE ACT 1995

The Act allowed hearsay evidence to be admitted in civil proceedings.  More precisely that “in civil proceedings evidence shall not be excluded on the ground that it is hearsay” (s.1).  However this is subject to certain safeguards, in particular in relation to notice being given.  Section 4 deals with the weight that should be given to hearsay evidence.

“Considerations relevant to weighing of hearsay evidence.

(1)In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2)Regard may be had, in particular, to the following—

(a)whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b)whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c)whether the evidence involves multiple hearsay;

(d)whether any person involved had any motive to conceal or misrepresent matters;

(e)whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f)whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”

THE BARNABY CASE

The action concerned the validity of a will that had been signed in 2005. One of the witnesses being called was a member of the solicitor’s staff.

THE MASTER’S CONSIDERATION OF THE SECTION 4 CRITERIA

    1. Ms Watson did not attend to give oral evidence; her daughter emailed the court to say she was in hospital on the first day of trial and then when she returned home was not in a fit state to give evidence even from home by Skype or otherwise. I was told Hodders had issued a witness summons for her attendance prior to the trial.
    2. Ms Watson made one statement dated 9th August 2019 in which she said she worked as receptionist at HAW for about 16 years until October 2005 or 2006, and that she is currently not working. She said she witnessed a large number of wills over the years. She recalled Mrs Bascoe as she came into the offices a few times over the years and that “…she was a nice lady. We used to chat about things, including our shared Caribbean heritage”.
    3. She also said that whilst she did not recall witnessing the 1992 will she did recall witnessing a later one with Ms Middleton-Albooye as she remembered chatting to Mrs Bascoe that day. Ms Watson confirmed that on the copy of the 2005 Will shown to and exhibited by her the signature is hers and that Mrs Bascoe did not say or do anything which would have meant Ms Watson to think she did not know where she was or that she was executing a will.
    4. I have to consider what weight I should attach to this evidence. Miss Johnson in her closing submissions – but this was not in the evidence – asks for it to be struck out on the ground that Ms Watson let her know she never saw Mrs Bascoe making a will. There is no evidence before me of that but she undermined her own submission by then alleging the will was made at Acre Lane, SW2.
    5. Mr Bishop submits that he does not need this evidence to prove his case, but that Miss Johnson admits the 1992 will which was witnessed by Ms Watson, as I have set out at [4] above. Mr Bishop submits and I accept Ms Watson is clearly telling the truth when she says that she knew Mrs Bascoe for some 16 years. I also note that comparing Ms Watson’s attestation in 1992 the similarities with that of 2005 make it inherently likely she did witness the 2005 Will.
    6. Mr Bishop also referred me to the Civil Evidence Act 1995 and the considerations at s.4 relevant to the weighing of hearsay evidence such as this. There is a list of factors to which I should have regard at s.4(2) which I apply below:

a) It would have been possible to have produced Ms Watson at court but for the hospitalisation;

b) The statement was not contemporaneous;

c) There was no multiple hearsay;

d) Ms Watson had no motive to conceal or misrepresent matters;

e) There is no suggestion it is an edited account or made for another purpose;

f) The circumstances are not such as to suggest an attempt to prevent proper evaluation of its weight.

    1. In my judgement I should attach some considerable weight to this statement for these reasons:

i) It accords with the evidence of Ms Middleton-Albooye and Mr Wynter which I accepted without reservation;ii) The act of attesting the signature of Mrs Bascoe is inherently likely in view of her unchallenged attestation of the 1998 will and personal acquaintance with Mrs Bascoe;

iii) I very much doubt Ms Watson’s evidence could be undermined by Miss Johnson in cross-examination;

iv) The factors under s.4(2) above generally lend weight to this evidence.

  1. In summary I accept Mr Bishop’s submission that he does not need this evidence to prove his case but I find I can attach some considerable weight to it especially as the key point is inherently likely in all the circumstances namely she witnessed a person known to her namely Mrs Bascoe executing the 2005 Will and then attested to that.