As long ago as June 1988 the Civil Justice Review Body recommended an inquiry into the usefulness of the hearsay rule in civil proceedings. In 1993, the Law Commission recommended that the rule
excluding hearsay evidence should be abolished, subject to safeguards, pointing out that the rule sometimes operated to exclude convincing and necessary evidence and was difficult to reconcile with the more open approach to civil litigation, for example prior exchange of witness statements.
Undue reliance was also placed on RCS O.38 r.29, which allows hearsay evidence to be admitted notwithstanding that requirements as to prior notice have not been complied with.
A Civil Evidence Bill giving effect to the Law Commission's recommendations is currently before Parliament and is likely to receive Royal Assent in October or November. This will provide for the admissibility of hearsay evidence and will simplify the rules relating to the proof of business documents. Under the Bill, evidence shall not be excluded simply on the basis it is hearsay. A party wishing to rely on such evidence will have to give reasonable notice of this including, if requested, particulars of such evidence.
Even if reasonable notice is not given the evidence may still be adduced, but the court will be able to take the failure to give notice into account in considering the weight of the evidence or in making orders for costs. As a further safeguard, there may also be power for a party to call for cross-examination a person whose evidence has been tendered as hearsay.
The simplification of the rules governing computer and business records will be of great importance. More and more businesses rely on electronic communications and keep computerised records. The new legislation should allow such records to be more easily admitted, without necessarily having to call a witness to prove them. This change partly arose out of concerns that uncertainty might discourage international business from being conducted electronically in London.
The Bill is a welcome sign of commitment to simplifying and modernising the civil justice system criticised in the Woolf report for its cost, delay and complexity. As such, it is a step in the right direction.
Neil Mirchandani is an assistant solicitor at Lovell White Durrant.
A 74-year-old Solihull pensioner who claims he was coerced into giving around £150,000 and making over a half share in his home to a woman friend is heading for the High Court in a bid to get the money and the share in his house back. Douglas Porter claims he took the money out of his bank and building society accounts and gave it to Patricia Cooper, also of Solihull. But he claims that both the money and the half share in the house were handed over as a result of undue influence and is now asking for court orders that the money and property should be returned to him.
Yachting libel appeal
November is scheduled for the hearing of the appeal by Yachting World against last year's £1.48 million libel award over allegations made in respect of a revolutionary type of sail. The action was brought against the magazine by Walker Wingsail Systems, which develops yachts driven by aerofoil sails, and its directors John and Jean Walker. Mr Walker received £450,000 damages, Mrs Walker £35,000, and the company £1 million.