Article 2 Hearsay evidence

For Order 20, rules 14 to 24^f1, there shall be substituted the following—

“Application and interpretation

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(1)

In this Part of this Order the “1995 Act” means the Civil Evidence Act 1995^f2 and any expressions used in this Part of this Order and in the 1995 Act have the same meanings in this Part of this Order as they have in the Act.

(2)

In this Part of this Order:

• “hearsay evidence” means evidence consisting of hearsay within the meaning of section 1(2) of the 1995 Act;

• “hearsay notice” means a notice under section 2 of the 1995 Act.

(3)

This Part of this Order applies in relation to the trial or hearing of an issue arising in an action or matter and to a reference under section 65 of the Act (Power of judge to refer to district judge or referee) as it applies to the hearing of an action or matter.

(4)

Nothing in this Part of this Order shall apply in relation to proceedings which have been referred to arbitration under section 64 of the Act.

Hearsay notices

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(1)

A hearsay notice must

(a)

state that it is a hearsay notice;

(b)

identify the hearsay evidence;

(c)

identify the person who made the statement which is to be given in evidence;

(d)

state why that person will (or may) not be called to give oral evidence, and

(e)

if the hearsay evidence is contained in a witness statement, refer to the part of the witness statement where it is set out.

(2)

A single hearsay notice may deal with the hearsay evidence of more than one witness.

(3)

The requirement to give a hearsay notice does not apply to

(a)

evidence which is authorised to be given by or in an affidavit; or

(b)

a statement which a party to a probate action desires to give in evidence and which is alleged to have been made by the person whose estate is the subject of the action.

(4)

Subject to paragraphs (5) and (6), a party who desires to give in evidence at the trial or hearing of an action or matter hearsay evidence shall, not less than 28 days before the day fixed for the trial or hearing, serve a hearsay notice on every party and file a copy in the court.

(5)

Unless the court otherwise directs, paragraph (4) shall not apply to an action or matter in which no defence or answer has been filed and, where a defence or answer is filed less than 28 days before the day fixed for the trial or hearing, any party who is required to give a hearsay notice shall apply to the court for an adjournment or for such other directions as may be appropriate.

(6)

Where witness statements are served under rule 12A of this Order (or under that rule as it is applied by Order 17, rule 11), any hearsay notice served under this rule shall be served at the same time as the witness statements.

Power to call witness for cross-examination on hearsay evidence

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(1)

Where a party tenders as hearsay evidence a statement made by a person but does not propose to call the person who made the statement to give evidence, the court may, on application, allow another party to call and cross-examine the person who made the statement on its contents.

(2)

An application under paragraph (1) shall be made on notice to all other parties not later than 28 days after service of the hearsay notice.

(3)

Where the court allows another party to call and cross-examine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person and as to the procedure to be followed.

Credibility

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(1)

If

(a)

a party tenders as hearsay evidence a statement made by a person but does not call the person who made the statement to give oral evidence, and

(b)

another party wishes to attack the credibility of the person who made the statement;

that other party shall notify the party tendering the hearsay evidence of his intention.

(2)

A notice under paragraph (1) shall be given not later than 28 days after service of the hearsay notice.”.