Evidence in civil claims and housing cases

Presenting acceptable evidence in civil and housing cases, including formal requirements for witness statements.

This content applies to England & Wales

Evidence in civil claims

Most court cases, particularly those involving trials, rely on evidence to reach a conclusion. Cases involving substantial disputes of fact rely most heavily on evidence from the parties.

Rules about evidence can be complex, particularly in high value claims.

Evidence in civil litigation can include:

  • photographs

  • letters and emails

  • accounts, receipts and rent books

  • recordings and videos

  • medical records

  • witness statements

The court can give permission to use evidence which has been improperly or wrongfully obtained.[1]

Evidence should normally be provided in advance to the court and the other party.

Witness statements

If a party to proceedings seeks to rely on witness evidence, the witness must submit a witness statement. A claimant or defendant must submit their own witness statements if they want the court to consider their own witness evidence.

A witness statement is a formal document that provides the court with the facts of a case. Legal arguments should be set out separately in the statement of case made as part of the claim or defence.

Witness evidence is crucial to a successful outcome in a court case. Most claims, defences and applications rely on witness statements.

Formal requirements

There are formal requirements for the formatting and wording of a witness statement.[2] The statement of truth must comply with the requirements of CPR Practice Direction 32.

The witness statement must be written in the first person and contain the following information about the person making it:

  • name

  • address

  • occupation (including whether retired, unemployed)

  • whether the witness is a party, or an employee of a party

  • which statements are made as a matter of the witness's own knowledge

  • which statements are made on the basis of a belief, or information from a third party

If the witness seeks to rely on information provided by a third party, details of the source of information should be provided. It is acceptable for a witness to rely on information received from an adviser or a solicitor as long as the source is clear.

A witness statement must be in the words of the person making it. Where parties are represented, the representative must not prepare witness evidence for the party to the proceedings to sign.

A representative can assist the witness to make the statement by:

  • ensuring that all the relevant facts are included

  • putting the events in a chronological order

  • removing repetitions and expletives

  • separating and numbering the paragraphs

  • formatting the statement so that it complies with the formal requirements

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 are not recoverable unless the court orders otherwise.[3]

Witness statements must be given to the other side before the hearing. The Civil Procedure Rules contain detailed provisions as to when they should be exchanged.[4] In a trial, the court may give directions about the exchange of witness evidence.

Attaching documents to the witness statement

A witness may refer to additional documents in the witness statement. The additional documents should be clearly labelled (e.g. AB1, AB2) and attached to the witness statement.

Witnesses who do not read English

There are specific rules for witness statements where the witness does not read English or has limited English.

Where a witness statement is in a foreign language, the party seeking to reply on it must:[5]

  • have it translated

  • file the foreign language witness statement with the court

  • submit an affidavit from the translator exhibiting both the translation and a copy of the foreign language witness statement

No provision is made for when the witness' own language is not a written language.

If a witness is unable to read in their own language, a solicitor can sign the witness statement if certain requirements are met.[6]

Failure to comply and false statements

If the witness evidence rules have not been followed, the court can:

  • use discretion to dispense with the formal requirements as part of its overriding objective[7]

  • dismiss the evidence

When evidence is dismissed due to non compliance, the affected party can apply to court for relief from sanctions.

Making a false statement in a witness statement can lead to proceedings for contempt of court, including a prison sentence.[8]

Court decision to admit evidence

Not all evidence can be used to support a case.

The court has discretion as to whether or not evidence is admissible and can be taken into account. Practice in relation to what can be admitted varies between the courts. A judge may not ask for the evidence to be proved unless there is a dispute about it. In most housing possession cases there is very little time ask for strict evidence to be given.

A judge may decide 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.

Types of evidence

Evidence in civil claims can take the form of:

  • oral

  • documentary

  • real

  • hearsay

  • computer records

Direct oral evidence

This is the evidence that is given by the witness or witnesses in a case.

It is very important that witness attend the hearing. Direct or oral evidence is almost always admitted, because it gives the judge and the other side the opportunity to ask questions of the witness to clarify matters in the case.

If a party to proceedings seeks to rely on a witness, the witness must have submitted a witness statement.

Authenticating documentary evidence

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.

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.

In housing cases, real evidence could be:

  • the actual object that a landlord used to threaten a tenan

  • an item that had been damaged due to dampness

  • a judge visiting the property to see the state of repair for themselves

Real evidence must be identified by a witness or in a witness statement. If there is a dispute about the validity of real evidence and no witness can verify it then the rules on hearsay evidence apply.

Hearsay evidence

Hearsay evidence is an oral or written statement that was made out of court and that is relied on to prove the truth of the matters stated.

Evidence is considered as hearsay if its purpose is to prove the truth of the matters stated in the case. A statement in court that 'the landlord shouted and swore at me and said 'I'll get you out'', is an example of direct evidence that the landlord swore and shouted but only hearsay evidence that they intended to evict the tenant.

Hearsay evidence is normally admissible.[9] Notice should be given to the other side before the hearing that hearsay evidence is to be used.[10] If the notice is not given, then the court has discretion to adjourn the hearing or make a costs order against the party that has failed to notify the other side.

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.

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.[11]

Where necessary, advisers should ensure that the client gets appropriate specialist advice.

Computerised records as evidence

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

Sharing evidence

Copies of evidence must be given to the other side prior to the hearing. In trials, the court may give directions for the sharing of evidence.

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. Parties to proceedings could or request an adjournment to consider evidence presented at, or shortly before, the hearing.

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'.[12] This admits the truth of all or part of the other party's case.

Making a pre-action admission reduces the matters that the court needs to hear evidence or oral arguments about. It can help resolve the case faster, save court time and reduce the costs to the parties.

A pre-action admission needs to be made within 14 days of  receipt of the claim form, or receipt of particulars of claim (if filed after the claim form).[13]

Last updated: 5 March 2021

Footnotes

  • [1]

    Mustard v Flower & Ors [2019] EWHC 2623 (QB)

  • [2]

    r.32 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

  • [3]

    r.32.15(2) Civil Procedure Rules 1998 SI 1998/3132 (as amended).

  • [4]

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

  • [5]

    CPR PD 32 para 23.2.

  • [6]

    CPR PD 22 para 3A.

  • [7]

    para 25 CPR practice direction 32, Brainbox Digital Ltd v Backboard Media GmbH [2017] EWHC 2465 (QB).

  • [8]

    r.32.14 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

  • [9]

    s.1 Civil Evidence Act 1995.

  • [10]

    r.33.2 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

  • [11]

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

  • [12]

    r.14.1 Civil Procedure Rules 1998 SI 1998/3132 (as amended).

  • [13]

    r.14.2 Civil Procedure Rules 1998 SI 1998/3132 (as amended).