If a witness cannot be traced, then a party might need to rely on hearsay evidence. But getting the court to give weight to such evidence isn’t easy

James Bessey

The past five years have brought about a lot of forced personnel changes as a result of redundaancies, insolvencies and reorganisations. This can cause difficulty in relation to disputes where witnesses cannot be traced or are not available to give evidence in person. The usual procedure at trial is that witnesses must give evidence in person and be subject to cross-examination. Although this is the ideal, it is not always possible for the court to hear from relevant witnesses in person and it may not be proportionate in terms of the costs to call a witness to attend in person.

Additionally, it may not be possible to trace relevant witnesses if parties have moved on. However, it may be that relevant people have previously recorded their account of relevant events or, such as in the recent First Subsea case, given a statement in other proceedings. This is a distinct possibility in construction disputes where there may be an adjudication months or years before subsequent litigation.

Therefore if a witness cannot be traced, it may be that previous statements can be adduced at trial as hearsay evidence. This is technically described as a written or oral statement of evidence which is not based on a witness’ first-hand evidence; in the case of an existing witness statement, it may be that the witness is not able to give evidence at trial and therefore their comments can only be relied upon as hearsay and the court cannot cross-examine their evidence.

At a basic level, hearsay can be described as a person stating what they were told by another about something the first person has no direct experience of.

This is in reality not much better then “gossip” and is a type of hearsay evidence which the law has always been extremely suspicious of, does its best not to allow as evidence and is usually struck out as draft witness statements are prepared.

Although the courts are not keen on hearsay evidence, if a previous witness statement is accompanied by a statement of truth and the issue is one of witness availability then some of the usual fears may be assuaged somewhat.

Maybe an answer to the difficulty in securing witness statements would be witnesses giving evidence by Skype?

In order to adduce hearsay evidence, a hearsay notice must be issued explaining why the witness will not be available to give evidence at trial. This can be challenged by another party who may insist that the maker of the statement be called to trial to give evidence in person.

In First Subsea a witness statement had been given in prior proceedings, but the witness was not called by either party to give evidence in subsequent proceedings (in part perhaps because he now worked for the defendant). The previous statement had been disclosed and the claimant party wanted to rely on it saying, among other things, that it was in an agreed bundle. However, the defendant said that the statement should have been subject to a hearsay notice, which the claimant was now out of time to serve. The claimant’s argued that it did not need to serve such a notice because the statement was in an agreed bundle and therefore the claimant should be allowed to rely on it as evidence and/or serve the required notice out of time.

In First Subsea the court made it clear that, in general, including a document in a bundle was not the same as giving a hearsay notice. Despite this, the claimant was eventually successful in including the statement, but not without penalty. The court concluded it would give the statement such weight or value as the court thought right “having regard to the circumstances in which and the time at which it has been introduced into this hearing”. In principle, this could mean that a statement is given little weight or importance if the right notice is not given in good time. What is almost certain is that hearsay evidence submitted late and without the relevant notices where the witness is not available at trial is unlikely to form the conclusive factor in a court’s decision.

The courts are increasingly required to consider what is proportionate in terms of conduct of an action and the costs incurred. Depending on the circumstances, it might not be proportionate to incur the costs of a witness travelling back to give evidence in person. In those circumstances it may be appropriate to seek to adduce a statement by use of a notice.

We tend to think that communication and IT improvements mean that it is easier to trace and call witnesses and hearsay is or should be less of a problem now. But in some senses the issue is more difficult because of the fluid nature of the labour force in a larger global market. Demanding employers and an inability to pay a witness for their time can result in practical difficulties in securing assistance of witnesses on certain cases. Maybe an answer the courts will investigate would be witnesses giving evidence by Skype? This would enable a degree of cross-examination and eliminate the need for some hearsay notices.

James Bessey is a partner in the construction, infrastructure and projects department at DWF