Witness statements must make clear what is based on the witness’s own knowledge, and those matters which are their belief. Care should be taken with opinions and hearsay rules should be complied with. Opinion evidence is not generally admissible – though expert opinion is an exception.


Real (tangible) evidence Documentary evidence


Real evidence is usually tangible, and takes the form of some kind of material object produced before the court. It is normally produced to show that it exists, or so that an inference can be drawn from its physical properties or condition.


Documentary evidence can be wide-ranging and includes any documents or written records that help prove or defend a claim. It is essentially anything that contains writing, including digital records so documentary evidence ranges from: diaries, spreadsheets, work accident log books, employment contracts, and medical notes, to repair invoices, pay slips, transcripts of phone calls and emails, texts, whatsapp messages, metadata. Even draft documents are evidence including draft reports subject to the privilege rule.


Certain information may be privileged. Only documents created for the dominant purpose of actual or contemplated litigation will qualify for litigation privilege purposes. Where documents have been provided for another purpose the document will fail the dominant purpose test. Where documents have been provided for more than one purpose, the court must be satisfied that the dominant purpose is litigation, from an objective standpoint. It is not sufficient if litigation is a secondary or equal purpose.


So what do courts mean by actual or contemplated litigation. Litigation will be in contemplation if it is ‘anticipated’, ‘apprehended’, ‘pending’


Real evidence can take many forms. Material objects such as faulty products or parts, the appearance of people, photographs are all real evidence.


This evidence is usually produced for inspection by parties and courts draw inference from this evidence when deciding on causation.


or ‘threatened’ and will be a question of fact in each case. While there is no need for more than a fifty percent (50%) chance of litigation, it is not enough that there is a ‘mere possibility’ or even a distinct possibility that sooner or later someone might make a claim. Litigation should be reasonably in prospect, or reasonably anticipated, when the relevant communication/ document is made.


Hearsay evidence


Hearsay evidence is where a witness in proceedings seeks to give evidence of a particular fact on the basis of what was said to him or her by a third party. The general rule is that hearsay evidence is admissible in civil proceedings under the Civil Evidence Act 1995, however you (i.e. your solicitor) must give notice to the other side of your intention to rely on hearsay evidence.


Hearsay evidence is basically second hand evidence. A written or oral statement made otherwise than by a witness giving their own first-hand evidence in proceedings, which is tendered as evidence of the matters stated and which is relied on in court to prove the truth of the matters stated.


So a court is likely not to give so much weight to hearsay evidence as it would to other evidence. The court will take a number of factors into account when weighing up the strength or otherwise of the hearsay evidence.


The strongest type of evidence is therefore that which provides direct proof of the truth of an assertion.


Karen Brain Managing Director


Matrix Insurance Services Ltd Tel: 01892 724060


Enquiries @matrix-ins.co.uk The Report • March 2019 • Issue 87 | 81


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