Is Hearsay Evidence Admissible in Civil Proceedings?

The Civil Evidence (Northern Ireland) Order 1997 governs the admissibility of hearsay evidence.

Article 3 of the Order defines what hearsay evidence is and the general parameters of its admittance into evidence. It sets out as follows:

3. (1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

(2) All common law rules providing for exceptions to the rule against hearsay in civil proceedings are superseded by this Order.

(3) In this Order—

(a) “hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and

(b) references to hearsay include hearsay of whatever degree.

(4) Nothing in this Order affects the admissibility of evidence admissible apart from this Article.

(5) The provisions of Articles 4 to 6 (safeguards relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this Article, notwithstanding that it may also be admissible by virtue of this Article.

Therefore, under the terms of the 1997 Order, all hearsay evidence is prima facie admissible in civil proceedings. The question is how much weight is given to such evidence.

There are 6 factors set out at Article 5 (3) to ensure that hearsay evidence is given appropriate weight. They are as follows:

5. (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 shall be had, in particular, to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and, if so, to the sufficiency of the notice given.

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

(a) whether it would have been reasonable and practicable for the party by whom the evidence is 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.

Specifically, Article 8 states:

8.     (1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved:

(a) by the production of that document; or

(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.

(2) It is immaterial for this purpose how many removes there are between a copy and the original.

If we look to the caselaw – the decision in Breslin & Ors -v- Murphy & Daly [2013] NIQB 15 deals with the point about excluding hearsay evidence.  This was a Northern Ireland Court of Appeal case that found in favor of Murphy & Daly who won on the point of exclusion of hearsay evidence at their trial.

The original action involved 12 plaintiffs, who had sought damages against a number of defendants for personal injuries sustained by them as a result of the explosion of a bomb in Omagh town centre on 15 August 1998.

Counsel for Murphy resisted the admission of the hearsay evidence in question on the basis that:

1. It contained material which was unproven.
2. It was not going to be proved by the Plaintiff’s.
3. It was largely irrelevant and grossly prejudicial to the defendant’s contrary to their right to a fair trial pursuant to Article 6 of the European Convention for the Protection of Human Rights.
4. In any event, the material was not evidence within the protection of the 1997 Order but purely ‘contextual material.’

Gillen J determined that:

‘Under the terms of the 1997 Order, all hearsay evidence is prima facie admissible. I am satisfied that this must include the required desideratum of contextual material, which serves to make sense of the evidence of TM. Otherwise the purpose of the legislation becomes frustrated.’

In making his decision Gillen J set out the test for the admissibility of evidence in a civil action:

• Relevance – namely that the material to be adduced was potentially probative of an issue in the action. i.e. if irrelevant it should not be admitted in the first place.
• Significance of the evidence  – The strength of the argument for admitting the evidence will always depend primarily on the judge’s assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.
• The overriding purpose must always be to promote the ends of justice by a trial process fair to all parties.

In his summary Gillen J stated:

‘In those circumstances, in order to ensure that justice was seen to be done, that the trial process was fair and that wholly prejudicial material was not put before the court  unnecessarily, I decided to refuse to admit such contextual material notwithstanding that the hearsay evidence of TM’s replies was ex hypothesi legally admissible.’

He confirmed although he recognised the strength in the submission that the thrust of the 1997 Order is to eschew an exclusionary approach to hearsay evidence, that he was satisfied that the overarching presence of Article 6 Rights under the European Convention on Human Rights (ECHR) could not be ousted and that the overriding purpose must always be to promote the ends of justice by a trial process fair to all parties.

Therefore, under the terms of The Civil Evidence (Northern Ireland) Order 1997 all hearsay evidence is prima facie admissible in civil proceedings.  There may be circumstances where a party seeks to make an application to have hearsay excluded (see Breslin & Ors -v- Murphy & Daly [2013] NIQB 15 for discussion) however if admitted the arguments will focus on its evidential value, in all the circumstances of the case.

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