Q: What is in evidence?
A: Anything in the trial bundle by virtue of 32PD§27 – but you may not be allowed to rely upon it.
So held HHJ Baucher in dismissing the Claimant’s claim for a declaration of the “basis and terms of the D’s occupation” of commercial premises. The Claimant had initially called no evidence, so Andy Creer of Hardwicke, acting for the Defendant, also called no evidence and submitted that the Claimant could not prove its case.
It was not until closing that the Claimant referred to a suite of documents which were in the trial bundle but after the point at which the Defendant has elected not to call evidence.
The Judge held that 32PD§27 prevails; the documents in a trial bundle are evidence of their contents. However, this should not be construed in isolation and the Court should have regard to the other provisions of the CPR and the overriding objective. Therefore, in order to do justice in this case, she would not permit the Claimant to refer to items of disclosure in the bundle in closing.
However, as she also held that everything in the trial bundle is in evidence, parties may want to think more carefully about agreeing its contents!