RELIEF FROM SANCTIONS GRANTED WHEN NOTICE TO RELY ON HEARSAY EVIDENCE NOT SERVED AHEAD OF TRIAL
In ST (A Minor) & Anor v L Primary School (Rev 2)  EWHC 1046 (QB) Deputy Master Hill QC granted relief from sanctions where the claimant failed to serve a notice of intention to rely on hearsay evidence prior to trial. The defendant had copies of the statements and well knew that the claimant intended to rely on them. In these circumstances the breach was not serious or significant.
The claimant brought an action alleging that the defendant had acted unlawfully in sending out personal details about her in a letter to parents at a school she attended. An issue arose as to whether the claimant was entitled to rely on evidence of witnesses where statements had been served but not called at the trial.
CPR 32.2 governs relying on hearsay evidence.
(1) Where a party intends to rely on hearsay evidence at trial and either –
(a) that evidence is to be given by a witness giving oral evidence; or
(b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence;
that party complies with section 2(1)(a) of the Civil Evidence Act 19951 serving a witness statement on the other parties in accordance with the court’s order.
(2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement –
(a) inform the other parties that the witness is not being called to give oral evidence; and
(b) give the reason why the witness will not be called.
(3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which –
(a) identifies the hearsay evidence;
(b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and
(c) gives the reason why the witness will not be called.
(4) The party proposing to rely on the hearsay evidence must –
(a) serve the notice no later than the latest date for serving witness statements; and
(b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.
RELIEF FROM SANCTIONS IN THE CURRENT CASE
The Deputy Master observed that the claimant had served the witness statements but not the formal notification. This led to the defendant objecting to the claimant relying on these statements.
THE JUDGMENT ON THIS ISSUE
(b) The Claimants’ hearsay evidence
The Claimants invited me to have regard to the evidence of three further witnesses who gave similar evidence to that of Ms Forsythe: Nicki Gilbert, Anthony Bradford and Karen Myers.
The School objected to the admissibility of this evidence on the grounds that although the Claimants had informed the School that these witnesses were not being called to give oral evidence (in compliance with CR 33.2(2)(a)), they had not informed the School of the reasons why the witnesses were not being called (as required by CPR 33.2(2)(b)). It was suggested that had the Claimants done this, the School would have applied under CPR 33.4 to have the witnesses attend to be cross-examined at trial. Alternatively, the School argued that the evidence should be admitted, but very little weight attached to it.
In response, RF stressed that she was a litigant in person. She emphasised that the School had been made aware of the Claimants’ intentions with respect to these witnesses for some time (as they had featured in an earlier summary judgment application) and that there had been further discussions about including their evidence in ‘the hearsay part’ of the trial bundle. She argued that at no point had the School pointed out her procedural error. She said that she did not consider that she needed to arrange for the witnesses to attend, had not wanted to require them to do so (noting, for example, that one was ST’s current Headteacher) and would have tried to arrange for their attendance had she known this was required.
As set out above the School accepted that I could, in principle, admit the evidence. The route to admissibility was not fully canvassed in argument but it seems to me that it would be either via CPR 3.9 (by affording the Claimants relief from sanctions) or via CPR 3.10(b) (by exercising the general Court power to rectify matters where there has been an error of procedure).
The terms of CPR 33.2(3)(b) are mandatory but do not specify a sanction for non-compliance. A case management order made in this case on 10 December 2019 directed the parties to serve witness evidence and “all notices relating to the evidence” by a certain date and contained a general provision that non-compliance meant that the case was “liable to be struck out or some other sanction imposed”. These elements therefore mitigate in favour of the Claimants needing to seek relief from sanctions under CPR 3.9.
On that basis, the familiar elements as set out in Denton v White  1 WLR 3926 fall to be considered, namely (i) the seriousness and significance of the breach in respect of which relief from sanctions is sought; (ii) why the failure or default occurred; and (iii) all the circumstances of the case, including whether the breach has prevented the efficient and proportionate conduct of the litigation.
Applying those factors I conclude that (i) the Claimants’ breach was not serious or significant, as they had made clear throughout what their intentions were with respect to these witnesses, and if asked by the School, would no doubt have provided the reasons for their intended non-attendance at trial; (ii) the failure occurred because RF is a litigant in person and had not understood that the reference to “notices” in the case management order related to the procedural requirements for hearsay evidence; and (iii) the breach has had some impact on the efficient and proportionate conduct of the litigation because the witnesses were not made available for cross-examination at trial. However I was shown no correspondence suggesting that the School’s solicitors had pressed RF for reasons for their non-attendance, or the contact details for the three witnesses. The School’s counsel accepted that his solicitor had nevertheless been able to make some initial contact with Ms Gilbert (presumably as she made clear in her witness statement which school she is currently Headteacher of), but for whatever reason she was not before the Court as a live witness. Further, the School’s counsel asked Ms Forsythe no questions at trial which raises a doubt over whether they would in fact have cross-examined these three witnesses (who give very similar evidence) had they attended.
For all these reasons I decided that it would be appropriate to grant the Claimants relief from sanctions for non-compliance with CPR 33.2 and admit the evidence as hearsay at trial. If the correct route to admissibility was in fact CPR 3.10, then I considered that it would be appropriate to exercise that power and remedy the Claimant’s procedural failure.
Ms Gilbert is the Headteacher of ST’s current school. She has known RF since September 2014. She described having seen RF engaging in “very unusual, over-protective behaviour” of ST; how she had spoken several times about the distress caused to her by the distribution of the letter by the School; and how she had been keen to protect ST’s privacy at her new school.
Mr Bradford was a former mayor and councillor of the town where the School is located. Ms Myers was a Teaching Assistant for ST at her former primary School (and a friend of the family). They both described RF’s distress at the sending of the letter, but did not attribute these to any particular date.
Having admitted the evidence of the three witnesses as hearsay I had to consider its weight. I did so with regard to the Civil Evidence Act 1995, s.4. This provides that i n 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, and that regard may be had in particular, to (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; and (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.
Applying the factors set out in the Civil Evidence Act 1995, s.4 I concluded that the hearsay evidence was to be afforded some weight: it provided general corroboration of other parts of the Claimants’ case (in particular as to the distress the letter caused her), from witnesses of some standing, but with the exception of Ms Gilbert’s evidence about the privacy form at ST’s current school, there was nothing entirely ‘new’ in the hearsay statements.