Brown v Mujibal (QBD), Newcastle County Court (Judge Gargan) [2017]

The court considered the application of CPR, r. 33.4(1) in respect of whether the claimant could be cross examined in circumstances where they had not served a witness statement, but had witnesses who had relied upon the claimant’s comments and included them in their own witness statements as hearsay statements.

The facts

The claimant was involved in a road traffic accident where she sustained significant head and brain injuries. A pre-trial review took place where the court considered whether the defendant could rely on CPR, r. 33.4(1) in order to cross-examine the claimant despite her not having served a witness statement.

CPR, r. 33.4(1) provides that where a party seeks to rely on hearsay evidence and does not propose to call the person who made the original statement to give oral evidence, then the court may permit the maker of the statement to be cross examined on the content of their statement.

In this case, the claim was for substantial damages and the defendant argued that they had exaggerated the effects of their injuries. The defendant argued that the claimant was seeking to rely on significant amounts of hearsay evidence because even though she had not served a witness statement, her husband had served a witness statement referring to what she had told him in respect of her ongoing symptoms and capabilities.

The defendant sought to challenge the claimant’s evidence by cross-examining her and argued that CPR, r. 33.4(1) applied because the claimant was seeking to rely on significant amounts of hearsay evidence contained in statements made to experts and witnesses, when she was not willing to provide a witness statement herself.

Findings

The court held that the claimant’s husband had made his own observations but had also relied upon comments that his wife had made in respect of her ongoing symptoms and capabilities. It was concluded that these comments were hearsay and there was nothing in CPR, r. 33.4(1) expressly limiting its application to a formal witness statement.

The court concluded that it had the discretion to make an order for cross-examination of the claimant because the application of CPR, 33.4(1) applied to any hearsay evidence upon which a party relied, whether it was contained in a witness statement made by the author of the hearsay statement or in some other statement, comment or expert report.

It was held that there were no good reasons for the defendant to be prevented from cross examining the claimant and that it was just and proportionate to provide them with permission. When exercising its discretion, the court took into account the fact that the claim was very substantial. Also there were significant differences between the claimant’s and the defendant’s quantum valuations and it was held that seeing and hearing from the claimant would assist with assessing the claimant’s capabilities and extent of her ongoing symptoms.

In respect of procedure, it was concluded that it was for the trial judge to manage the trial and regulate the admission of evidence. Further, it was held that the claimant could serve a witness statement in response to any schedule prepared by the defendant addressing the areas in which the claimant was to be cross examined.

What this means for you

In this case the court stated that CPR, r. 33.4(1) had a wide application allowing a party to be cross examined in respect of hearsay evidence even if they had not served a witness statement. It was specifically provided that CPR, r. 33.4(1) applied to any hearsay evidence and in this case it was appropriate for the claimant to be cross examined because her husband’s witness statement had referred to comments that she had made in respect of her injuries and capabilities, which were hearsay statements.

It can be seen that the court took a common sense approach when permitting the claimant to be cross examined in relation to her injuries and capabilities as these issues were firmly in dispute. Also the claimant’s husband had noted and relied upon the comments his wife had made in respect of her injuries and her capabilities. As a result, it was sensible for the claimant to be cross examined in respect of these issues.

It should be noted that CPR, r. 33.4(1) does not automatically entitle a party to call a person to be cross examined because the court has to first give permission for them to do this. As a result, this case may have been decided differently if there had been no significant issues in dispute or if the claimant’s husband had mainly referred to his own experience and observations in his witness statement.

In respect of hearsay evidence, the Civil Evidence Act 1995 governs its admissibility and it will not be excluded simply on the grounds that it is hearsay. However, hearsay evidence will not be admissible in certain circumstances, for example, where the maker of the statement would not have been a competent witness, or if the hearsay evidence is not of any relevance.

A party should be careful in respect of the hearsay evidence which it seeks to rely on and should take note that even though the evidence may be admissible, the court will attach less weight to it when assessing the issues.