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Evidence

This content applies to England & Wales

What counts as evidence, and the different types of evidence that can be put before the county court.

Where evidence is to be used to support the case, particularly if it is in documentary form (see below), the party intending to rely on this evidence must provide the other side with copies prior to the hearing. However, there will be times when this will not be possible and, if this is the case, it is important to seek out the legal representative of the other side before going in to court in order to give her/him copies of anything which will be produced in proceedings. If this is not done, the other side may try to persuade the judge to disregard the evidence, as they will not have had the opportunity to prepare arguments against it.

The five types of evidence that can be put before the county court are considered below.

    What counts as evidence?

    Not all evidence can be used to support a case, as some evidence is considered by the court to be 'inadmissible', which means that it cannot be taken into account by the court. However, evidence that is admissible can only be used in court if the other side has been given advance warning that it is to be used. The court will have discretion as to whether or not evidence is admissible. Practice in relation to what can be admitted varies between the different courts, and a judge may not always ask for the evidence to be properly 'proved' unless prompted by the other side. This is particularly the case on possession days when the number of cases on the list for the day is often so large that there is very little time to spend asking for strict evidence to be given. A judge may feel that arguments about proof and evidence take up a lot of time, particularly where there is no good reason for querying the evidence, and may take this into account when making a decision on costs (see the section on Costs for more information).

    The rules of evidence do not apply to small claims (see the section on Small claims).

    Direct (oral) evidence

    This is the evidence that is given by the witness or witnesses in a case. Direct or oral evidence is almost always admitted, as the judge and the other side will have the opportunity to cross-examine the witness and ask any questions to clarify matters in the case. It is therefore extremely important that witnesses attend the hearing, where possible.

    Under the Civil Procedure Rules, an affidavit (a statement in writing and on oath, sworn before someone who has the authority to administer it) may be used in place of a witness statement, but the extra costs of an affidavit will not be recoverable unless the court orders otherwise.[1] Witness statements or sworn affidavits of the oral evidence to be given should normally be given to the other side before the hearing, and the Court Rules contain detailed provisions as to when they should be exchanged.[2]

    Documentary evidence

    This is evidence that is in the form of a document, and could include, for example:

    • a notice to quit
    • rent book or rent receipts
    • a tenancy agreement or
    • a letter.

    Documentary evidence is usually authenticated by calling the person who wrote it to appear as a witness, to verify the authenticity of the document or a copy of it. Where there is no dispute about the authenticity of a document, the usual practice is for the other side to 'admit' the validity of undisputed documents. This would usually be agreed before the hearing.

    If there is no valid dispute about the authenticity of a document and one side nevertheless argues that it must be proved in order to force an adjournment of the case, it is likely that the judge would not look favourably on this and may award costs against them (see the section on costs for more information). If there is a dispute about the validity of a document and there is no direct witness to verify it, then the rules on 'hearsay' evidence will apply (see below).

    Real evidence

    This is evidence in the form of an actual object which becomes an 'exhibit' in the case. This type of evidence is rarely presented in housing cases but could, for example, be the actual object that a landlord used to threaten a tenant in a harassment case, or an item that had been damaged due to dampness. Another instance would be where a judge was taken to the property to see the state of repair for her/himself. Although this is unlikely to happen in practice, it would constitute real evidence.

    Real evidence must be identified by a witness or, if unavailable, a witness statement (or an affidavit). If there is a dispute about the validity of real evidence and no witness to verify it then the rules on hearsay evidence will apply (see below).

    Hearsay evidence

    This is evidence of an oral or written statement that was made out of court and that is relied on in court to prove the truth of the matters stated. Evidence will only be considered as hearsay if its purpose is to prove the truth of the matters stated in the case. For example, if a witness gives evidence in court that 'the landlord shouted and swore at me and said 'I'll get you out', this will be direct evidence that the landlord swore and shouted but only hearsay evidence that s/he intended to evict the tenant.

    Hearsay evidence is generally admissible.[3] However, a notice should be given to the other side before the hearing that hearsay evidence is to be used, which may be done by serving a witness statement and informing the other party that the witness will not appear and the reason.[4] If the notice is not given, then the court has discretion to adjourn the hearing or penalise, in costs, the party that has failed to notify the other side. However, hearsay evidence will have less weight than direct evidence and the court will take this into account when deciding a case. Section 4(2) of the Civil Evidence Act 1995 lists the considerations that are relevant to deciding what weight to give to hearsay evidence, for example, whether it would have been reasonable for the witness to attend the hearing. In a case where a tenant with criminal convictions for violence and intimidation was the subject of a possession claim on grounds including anti-social behaviour, it was reasonable for the witnesses not to attend the hearing because of their fear of possible reprisals.[5] If one side has an oral witness and the other only hearsay evidence, and the evidence is contradictory, then the court is likely to believe the direct oral evidence. The law on hearsay evidence is complex and not all hearsay evidence is admissible. Where necessary, advisers should ensure that the client gets appropriate specialist advice.

     

    In most housing cases (mortgage and possession cases specifically), the evidence relied upon will be witness statements or sworn affidavits and computerised records. In disrepair cases, photographs and other relevant documents may be produced in evidence. Letters and other documents to be used in evidence should be labelled as exhibits, sworn and attached to the witness statement or affidavit in which they are referred to.

    Computerised records as evidence

    Computerised records are admissible as evidence. Under the Civil Evidence Act 1995, they will be verifiable by way of a certificate from an officer of the company concerned confirming that they are a part of the records of the business.

    Pre-action admissions

    If there are facts or evidence that the parties agree upon, it is in their interest to submit to the court a written statement called a 'pre-action admission'.[6] Such an admission admits the truth, or any part, of the other party's case. Making a pre-action admission will reduce the matters that the court will need to hear evidence or oral argument about.

    A pre-action admission needs to be made within 14 days after receipt of the claim form, or 14 days after receipt of particulars if filed after the claim form.[7] Making a pre-action admission may mean that the proceedings are resolved faster, which will save on court time and costs to the parties.

    [1] Rule 32.15(2) Civil Procedure Rules 1998 SI 1998/3132 (as amended).

    [2] In most possession cases, at least two days before the hearing - Rule 55.8 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

    [3] s1 Civil Evidence Act 1995

    [4] Rule 33.2 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

    [5] John Boyd v Incommunities Ltd [2013] EWCA Civ 756

    [6] Rule 14.1 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

    [7] Rule 14.2 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

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