Evidence and disclosure - Relevance, hearsay, and admissibil...

Learning Outcomes

This article explains evidence and disclosure in civil litigation for SQE1 FLK1, including:

• the legal tests for relevance and admissibility, and how they interact with case management powers under CPR Part 32 and the overriding objective
• the definition of hearsay, the statutory framework (Civil Evidence Act 1995), and how hearsay differs from direct and documentary evidence
• the hearsay notice regime under CPR Part 33, including timing, content requirements, and the consequences of defective or late notice in exam-style problems
• the court’s discretionary powers to control evidence, exclude unfair or prejudicial material, and limit cross-examination to keep trials proportionate
• the factors governing the weight of hearsay, such as contemporaneity, multiple hearsay, motive to misrepresent, and practicality of calling the maker
• the structure of disclosure and inspection under CPR Part 31, including standard disclosure, reasonable search, and the concept of control
• the main categories of privilege (legal advice, litigation, and without prejudice), and how privilege affects what must be disclosed and what can be inspected
• the operation of pre-action and non‑party disclosure, and when these tools can be used to obtain key documents before or during proceedings
• the approach to electronic disclosure and the extended disclosure regime in the Business and Property Courts, with a focus on proportionality and exam application
• techniques for applying these rules to SQE1-style multiple-choice questions, including spotting common traps and eliminating distractor options

SQE1 Syllabus

For SQE1, you are required to understand the rules and procedures relating to evidence and disclosure in civil proceedings, with a focus on the following syllabus points:

• the meaning and importance of relevance in determining admissibility of evidence
• the definition of hearsay and the rules for its use in civil cases
• the criteria for admissibility of evidence, including the court’s discretion to exclude evidence
• the procedures and duties relating to disclosure and inspection of documents
• the court’s powers to control the nature and form of evidence (CPR Part 32)
• the hearsay notice regime (Civil Evidence Act 1995 and CPR Part 33), including rights to require cross-examination and attack credibility
• how weight is assessed for hearsay, including contemporaneity and multiple hearsay
• standard disclosure under CPR Part 31, and the availability of pre‑action and non‑party disclosure
• privilege (legal advice, litigation, and without prejudice) and its effect on inspection
• the role of electronic disclosure and reasonable search, and the disclosure approach in the Business and Property Courts

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the legal test for whether evidence is relevant in civil proceedings?
2. Which of the following best describes hearsay evidence? a) A statement made in court by a witness
   b) A statement made out of court, repeated in court to prove the truth of its contents
   c) A document disclosed during inspection
3. True or false? All relevant evidence is automatically admissible in civil proceedings.
4. What must a party do if they intend to rely on hearsay evidence at trial?

Introduction

Evidence is central to civil litigation. Only evidence that meets the legal requirements for relevance and admissibility can be considered by the court. The rules on hearsay have changed in recent years, especially for civil cases, and the court has wide discretion to control what evidence is admitted. Understanding these rules is essential for SQE1.

Civil courts apply the burden and standard of proof to evidence presented. The party who asserts (usually the claimant) bears the burden of proof, and the standard in civil proceedings is the balance of probabilities: a fact is proved if it is more likely than not. The Civil Evidence Acts 1972 and 1995 sit alongside the Civil Procedure Rules (particularly Parts 32 and 33) and the overriding objective. Using its case management powers, the court can identify the issues for which evidence is required, limit the form and extent of evidence, and exclude otherwise admissible evidence where appropriate to ensure a fair and proportionate trial.

Relevance of Evidence

Evidence must be relevant to be admissible. Relevance means the evidence can logically affect the probability of a fact in issue.

Key Term: relevance
Relevance is the quality of evidence that makes it logically capable of affecting the likelihood of a fact in dispute.

The court will only consider evidence that could make a fact more or less probable. Irrelevant evidence is excluded.

Relevance is assessed against the pleaded issues and the matters that remain in dispute. Background facts may be included in witness statements to provide context, but material that does not assist the court on any live issue (liability, causation, or quantum) will be limited or excluded under CPR 32.1. The court can also determine the format and length of witness statements, and identify which witnesses may be called.

Worked Example 1.1

A claimant sues for breach of contract. The defendant wants to introduce evidence about the claimant’s unrelated business activities. Is this evidence relevant?

Answer:
No. Evidence about unrelated business activities does not make the existence or breach of the contract in dispute more or less likely. It is irrelevant and inadmissible.

Hearsay Evidence

Hearsay is a common issue in civil proceedings. Hearsay is a statement made outside the current proceedings, repeated in court to prove the truth of its contents.

Key Term: hearsay
Hearsay is a statement made other than by a person while giving oral evidence in proceedings, which is presented as evidence of the matters stated.

Hearsay is generally admissible in civil cases, but special rules apply. The party relying on hearsay must give notice to the other parties, usually by serving a witness statement containing the hearsay evidence.

In practice:

• if hearsay is to be given by a witness who will give oral evidence, the hearsay is set out in that witness’s statement served in accordance with directions;
• if the maker of the statement will not be called, a hearsay notice must be served identifying the hearsay, stating that it will be relied on, and giving reasons why the maker is not being called;
• deadlines: service no later than the latest date for serving witness statements, and supply a copy of any document containing hearsay on request.

The other party may apply for the maker to attend for cross-examination or serve a notice to attack credibility of the maker, even if they are not called.

Worked Example 1.2

A witness statement says, “Sarah told me the floor was wet.” The witness is called to repeat this at trial. Is this hearsay?

Answer:
Yes. The statement was made by Sarah outside court and is repeated to prove the floor was wet. It is hearsay evidence.

Hearsay is a broad category and includes statements recorded in documents. The court will admit hearsay if relevant, but then consider what weight (if any) to give it.

Factors affecting weight include:

• whether it was reasonable and practicable to call the maker;
• whether the statement was made contemporaneously with the events;
• whether the evidence involves multiple hearsay;
• motive to conceal or misrepresent;
• editing, collaboration, or statements made for a particular purpose;
• whether the circumstances suggest an attempt to prevent proper evaluation of weight.

Exam Warning

In civil cases, hearsay is admissible, but if you fail to give proper notice, the court may give the evidence little or no weight.

Worked Example 1.3

The claimant serves a hearsay notice late and gives no reason for not calling the maker. Can the court still admit the hearsay? What is the likely impact?

Answer:
The court may admit the hearsay if it is relevant, but will consider the late notice and lack of reasons when assessing weight. It may give the hearsay little weight and can permit the other party to attack credibility or require the maker to attend for cross-examination.

Worked Example 1.4

A defendant receives a hearsay notice stating that an absent engineer’s report will be relied on. What steps can the defendant take?

Answer:
The defendant can apply for the engineer to attend for cross-examination and/or serve a notice to attack the engineer’s credibility. The court will weigh factors such as practicality of securing attendance and the importance of the statement.

Admissibility of Evidence

Not all relevant evidence is admissible. Evidence must also comply with legal rules and the court’s directions.

Key Term: admissibility
Admissibility is the quality of evidence that meets the legal requirements to be considered by the court.

The court may exclude evidence if it is unfair, prejudicial, or obtained improperly. The court has discretion to control evidence under the Civil Procedure Rules.

Key Term: discretion
Discretion is the court’s power to decide whether to allow or exclude evidence, even if it is relevant.

Evidence may also be excluded if it is privileged or protected by public policy.

Using CPR 32.1, the court can:

• specify the issues on which it requires evidence;
• identify the nature of evidence needed and the format for presenting it;
• limit cross-examination;
• exclude evidence that would otherwise be admissible where appropriate to secure a fair and proportionate trial.

Illegally obtained evidence may still be admitted if relevant, though the court may mark its disapproval through case management decisions or costs. Privilege and without prejudice communications are distinct bars to admissibility: they protect certain communications from use as evidence.

Worked Example 1.5

A party tries to introduce a secretly recorded phone call as evidence. The other side objects, arguing it was obtained unlawfully. What can the court do?

Answer:
The court may exclude the recording if admitting it would be unfair or contrary to public policy, even if it is relevant. Alternatively, it may admit it but limit its use or take the manner of obtaining it into account when assessing weight and costs.

Disclosure and Inspection

Disclosure is the process by which parties inform each other about documents relevant to the case. Inspection is the right to see and copy those documents.

Key Term: disclosure
Disclosure is the process of informing the other party about documents in your control that are relevant to the issues in dispute.

Key Term: inspection
Inspection is the right of a party to examine and copy documents disclosed by the other party.

Key Term: privilege
Privilege is a legal right to withhold certain documents from inspection, even if they are relevant and disclosed.

Documents protected by legal professional privilege, litigation privilege, or without prejudice privilege do not have to be shown to the other side, even if their existence is disclosed.

Standard disclosure under CPR Part 31 usually requires a party to disclose:

• documents on which it relies;
• documents which adversely affect its own case;
• documents which adversely affect another party’s case;
• documents which support another party’s case.

Only documents that are relevant to the contested issues must be disclosed, and parties must carry out a reasonable search. Reasonableness depends on volume, complexity, the significance of the likely documents, and the ease and expense of retrieval. Documents are disclosable if they are in a party’s control (in possession, or with a right to inspect or take copies), even if no longer in possession; where a document has been lost, the list and disclosure statement should explain when and how.

Disclosure is made using a list (Form N265) supported by a disclosure statement (statement of truth) confirming the extent of search and compliance. The opposing party may request inspection of non-privileged documents in Part 1 of the list, and inspection should be provided within seven days or by agreement through copies at reasonable cost.

Electronic disclosure (e-disclosure) includes emails, texts, and files. Parties should agree the scope of electronic searches (such as date ranges or key words) and the format for exchange, ensuring proportionality.

Business and Property Courts apply a permanent disclosure regime under PD 57AD (extended disclosure), which tailors disclosure to the issues in dispute. Outside that jurisdiction, CPR Part 31 standard disclosure applies.

Worked Example 1.6

A claimant’s solicitor discloses a letter headed ‘without prejudice’ that sets out settlement terms. The defendant requests inspection. Must the claimant allow inspection?

Answer:
No. Without prejudice correspondence should be disclosed (to acknowledge existence) but inspection may be withheld because such communications are privileged and inadmissible at trial, save for limited exceptions (e.g., on costs, where marked ‘without prejudice save as to costs’).

Pre-action disclosure (CPR 31.16) can be ordered before proceedings where the respondent is likely to be a party, the documents would be disclosable in proceedings, and pre-action disclosure would help dispose fairly of the anticipated claim, assist settlement, or save costs. Non-party disclosure (CPR 31.17) is available after proceedings where a person who is not a party has possession of documents likely to support the case or adversely affect another’s case, and disclosure is necessary for fair disposal or to save costs.

Worked Example 1.7

Before issuing, a claimant suspects the defendant holds reports that could narrow the issues. What must the claimant show to obtain pre-action disclosure?

Answer:
The claimant must show the defendant is likely to be a party to anticipated proceedings, the reports would be disclosable once proceedings start, and that pre-action disclosure is desirable to help settle, fairly dispose of the case, or save costs.

Revision Tip

Always check if a document is privileged before disclosing it for inspection. Privileged documents must be listed but can be withheld from inspection.

Weight of Evidence

The court decides how much weight to give each piece of evidence. Hearsay, for example, may be given less weight if the original maker of the statement cannot be cross-examined.

In estimating the weight to give hearsay, the court considers any circumstances bearing on reliability, especially:

• whether it was reasonable and practicable to call the maker;
• whether the statement was made contemporaneously;
• whether multiple hearsay is involved;
• any motive to misrepresent;
• whether it is an edited, collaborative, or purpose-made account;
• whether the manner of adducing the hearsay impedes proper evaluation.

If a party fails to comply with hearsay notice requirements, the court can still admit the evidence but may accord it little weight and permit measures to address the fairness of the trial (e.g., requiring attendance of the maker or allowing credibility challenges).

Worked Example 1.8

A party relies on a letter from a witness who cannot attend trial. The other side objects. What will the court do?

Answer:
The court may admit the letter as hearsay but may give it little weight if the witness cannot be cross-examined.

Key Point Checklist

This article has covered the following key knowledge points:

• Evidence must be relevant to be admissible in civil proceedings.
• Hearsay is a statement made outside court, repeated in court to prove the truth of its contents.
• Hearsay is admissible in civil cases, but notice must be given to the other parties.
• The court has discretion to exclude evidence, even if relevant, if it is unfair or prejudicial.
• Disclosure requires parties to inform each other of relevant documents in their control.
• Privileged documents must be disclosed but can be withheld from inspection.
• The court decides the weight to give each piece of evidence.
• The court controls evidence under CPR 32.1, including identifying issues, limiting formats, and excluding evidence to secure a proportionate trial.
• Hearsay procedures under CPR Part 33 include notices, rights to cross-examine makers, and to attack credibility.
• Factors affecting the weight of hearsay include contemporaneity, multiple hearsay, motive, and practicality of calling the maker.
• Standard disclosure (CPR 31) requires a reasonable search; control includes possession and rights to inspect or copy.
• Pre-action disclosure and non‑party disclosure are available where they assist settlement, fair disposal, or cost saving.
• Electronic disclosure should be scoped proportionately; PD 57AD governs disclosure in the Business and Property Courts.

Key Terms and Concepts

• relevance
• hearsay
• admissibility
• discretion
• disclosure
• inspection
• privilege