Guernsey litigation update – admission of hearsay evidence in civil proceedings10 Jun 2011
The law relating to the admission of evidence in civil proceedings in Guernsey has been overhauled. On 28 April, 2011 the Evidence in Civil Proceedings (Guernsey and Alderney) Law 2009 came into force and it has removed many previous restrictions concerning admissibility of evidence thereby potentially simplifying the task of lawyers and judges alike. The main impact is to clarify the admissibility of hearsay evidence in civil proceedings.
Evidential rules regarding what is known as "hearsay" evidence can be confusing enough to lawyers let alone the public and the changes to the law in Guernsey simplify what evidence can be placed before the Royal Court whilst introducing appropriate safeguards. Hearsay evidence is a statement made otherwise than by a person giving oral evidence in the proceedings which is tendered as evidence of the matter stated. An example of this would be "Gill told me that she went up the hill". A judge once described hearsay evidence in a very straightforward way – "it’s just gossip"!
The new Law means that in civil proceedings there is now no bar to such evidence being admitted. Furthermore, hearsay of whatever degree can now be admitted, for example, "Jack told me that Gill told him that she went up the hill". The changes move the focus from whether or not the evidence is admissible to what weight, if any, should be placed on it. There are a number of considerations set out in the Law against which hearsay evidence shall be assessed. The court is now obliged to have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. Some of the factors listed in the Law include the following:
- whether the original statement was made contemporaneously when the events occurred;
- whether the evidence is multiple hearsay;
- whether any person involved had any motive to conceal or misrepresent matters;
- whether it might have been reasonable for the party calling evidence to have produced the original maker of the hearsay statements; and
- whether the circumstances of the hearsay evidence suggest an attempt to prevent proper evaluation of its weight.
These factors are not exclusive and the court may consider any other circumstances which it thinks are relevant.
The established customary law of Guernsey which provided for the admissibility of evidence concerning a number of categories of records, public documents and published works of a public nature together with exceptions in relation to evidence of good and bad character, reputation or family tradition are confirmed and preserved under the new Law.
In addition to the shift of focus in assessing the weight to be given to hearsay evidence rather than whether it should be admitted at all, there are certain formal requirements introduced whereby a party proposing to reduce hearsay evidence in civil proceedings is obliged to give notice of his intention to produce that evidence and, if requested, particulars of that evidence. These requirements are set out in detail in the accompanying Evidence in Civil Proceedings (Guernsey and Alderney) Rules, 2011 along with the formalities governing the use of expert witness evidence.
Taken together with the recent reforms as to how the Royal Court in Guernsey conducts its business, including the overhaul of the rules of procedure, this latest enactment equips the court with further means to deal with the increasingly complex and evidentially difficult matters which are coming before it. These reforms stand only to enhance the reputation of the Royal Court in Guernsey as a centre of litigation excellence where matters can be dealt with in a commercial and cost effective manner.