Hearsay evidence refers to a statement made by someone other than the person giving the evidence (i.e. second or third-hand information passed from person to person).
It is admissible in a civil claim but the Court may not put much weight on it especially when the witness that knows the evidence first hand cannot be cross-examined. The Court will consider any circumstances from which any inference can reasonably be drawn, e.g. whether there is any motive to conceal the facts. The case of Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34 has given guidance on the admissibility and weight of hearsay evidence in civil proceedings.
Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34
Background
The Defendant was the parent company of a company named Grand China Shipping Company (Grand China).
In 2008, Grand China agreed to charter a vessel from the Claimant. The parties were all based in China but the contract was governed by English law.
Grand China defaulted on payments under the contract and alleged that the contract had been procured by the payment of bribes by the Claimant to senior employees of Grand China. In support of this allegation, the Defendant relied on confessions made during an investigation undertaken by the Chinese law enforcement unit.
The Claimant alleged that the confessions of the two of its employees had in fact been procured by torture and should therefore be inadmissible. It claimed that the Defendant engaged the Chinese law enforcement unit to manufacture false charges as a means of disrupting this case.
Decision
The Supreme Court supported the Court of first instance’s conclusion that torture could not be eliminated as a reason for the confessions, but since the allegations of bribery were not proved, the Claimant should be entitled to the agreed sum in the contract against the Defendant.
The Supreme Court provided the following guidance on the admissibility and weight of hearsay evidence:
- The admissibility of hearsay evidence should be considered before determining its weight and impact on the substantive issues in a case. However, this approach is not ‘mandatory, either generally or in this particular case’;
- The admissibility of evidence can be admitted de bene esse (i.e. taking the evidence into account on a provisional basis). Unless the evidence turns out to be critical to the decision to be reached, the issue of admissibility may never need to be determined as it can be considerably time-consuming, complex, and costly;
- When assessing the potential weight that could be put on hearsay evidence, the Court’s discretion under the Civil Procedure Rule 32 is not limited to matters that are found to be proved. The Court should have regard to ‘any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence’ (section 4 of the Civil Evidence Act 1995); and
- There is a distinction between findings of preliminary facts and findings of facts in the issue. In civil proceedings, both functions are performed by the judge, and “it would be illogical to reach a factual conclusion on the preliminary issue of admissibility and then, on the same evidence, reach a different factual conclusion when determining the fact in issue”.
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Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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