Learning Outcomes
After reading this article, you will be able to identify and explain the rules governing the relevance, hearsay, and admissibility of evidence in civil litigation. You will understand the requirements for admitting evidence, the definition and treatment of hearsay, and the procedures for disclosure. You will also be able to apply these principles to SQE1-style scenarios and answer exam questions on these topics with confidence.
SQE1 Syllabus
For SQE1, you are required to understand the rules and procedures relating to evidence and disclosure in civil proceedings. In your revision, focus on:
- 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
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.
- What is the legal test for whether evidence is relevant in civil proceedings?
- 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 - True or false? All relevant evidence is automatically admissible in civil proceedings.
- 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.
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.
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.
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.
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.
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.
Worked Example 1.3
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.
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.
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.
Worked Example 1.4
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.
Key Terms and Concepts
- relevance
- hearsay
- admissibility
- discretion
- disclosure
- inspection
- privilege
