Hearsay

We reported the case of John Boyd v Incommunities Ltd [2013] EWCA Civ 756 in our Social Housing Newsletter: July 2013 edition. The Court of Appeal in that case had upheld a possession order made on anti-social behaviour grounds where the evidence relied on 3 anonymous statements from the neighbours.

I am however still having problems with hearsay in ASB cases – or, rather, I am having problems with (1) lay clients who don’t think direct evidence from neighbours is important, and (2) a judge who’d like to have heard from someone other than the housing officer.

Whilst running a case entirely based on hearsay is permissible, as shown by John Boyd, doing so can be very problematic: a judge might not be convinced by a defendant’s explanation but in the absence of any live evidence to the contrary may feel she/he has no option but to find the case not proved (which may have serious potential costs consequences for the landlord).

If you’re going to run a case based entirely or in-part on hearsay, it’s well worth reviewing the key cases (Moat Housing v Harris [2005] EWCA Civ 287; [2006] QB 606, Solon South West HA v James [2004] EWCA Civ 1847; [2005] HLR 24 and Boyd) and the rules (Sections 1-7 Civil Evidence Act 1995, especially section 4, and CPR Part 33).

Make sure that there is a good reason for the potential witness(es) not attending (i.e. genuine fear, health or holiday – preferably all three!) and that you give proper notice where required in accordance with the rules (CPR Part 33.2). And if hearsay is being used against you, don’t forget that you can apply pursuant to CPR Part 33.4 to have the witness attend for cross-examination (this includes a witness whose evidence has been anonymised but whose name is still visible notwithstanding attempted redaction).

Alexander Bastin, Karl King and Alexander Campbell gave a seminar on this topic in February of this year at Hardwicke.