Civil Evidence
(Jersey) Law 2003
A LAW to provide for the
admissibility of hearsay evidence and the proof of certain documentary evidence
in civil proceedings; and for connected purposes.
Adopted by the
States 24th September 2002
Sanctioned by
Order of Her Majesty in Council 27th February 2003
Registered by the
Royal Court 21st
March 2003
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
(1) In
this Law –
“civil proceedings” means civil proceedings before any
court;
“court” means any tribunal in relation to which the
strict rules of evidence apply, whether as a matter of law or by agreement of
the parties;
“document” means anything in which information of any
description is recorded, and “copy”, in relation to a document,
means anything onto which information recorded in the document has been copied,
by whatever means and whether directly or indirectly;
“hearsay” means a statement made otherwise than by a
person while giving oral evidence in the proceedings which is tendered as
evidence of the matters stated, and references to hearsay include hearsay of
whatever degree;
“oral evidence” includes evidence which, by reason of a
defect of speech or hearing, a person called as a witness gives in writing or
by signs;
“original statement”, in relation to hearsay evidence,
means the underlying statement (if any) by –
(a) in
the case of evidence of fact, a person having personal knowledge of that fact;
or
(b) in
the case of evidence of opinion, the person whose opinion it is;
“statement” means any representation of fact or opinion,
however made.
(2) A
reference in this Law to an Article by number only and without further
identification is a reference to the Article of that number in this Law.
(3) A
reference in an Article or other division of this Law to a paragraph or
sub-paragraph by number or letter only and without further identification is a
reference to the paragraph or sub-paragraph of that number or letter in the
Article or other division of this Law in which that reference occurs.
(4) Unless
the context otherwise requires, a reference in this Law to an enactment is a
reference to that enactment as amended from time to time, and includes a
reference to that enactment as extended or applied by or under another
enactment, including another provision of this Law.
2 Application
(1) Subject
to paragraph (2) this Law applies to any civil proceedings begun on or after its
commencement.
(2) This
Law shall apply to civil proceedings begun before the commencement of this Law
if –
(a) the
parties to those proceedings so agree; and
(b) the
court so consents.
3 Admissibility
of hearsay evidence
(1) Evidence shall not be excluded on the
ground that it is hearsay.
(2) Nothing
in this Law affects the admissibility of evidence admissible apart from this
Article.
(3) Articles
4 to 8 do not apply to hearsay evidence admissible apart from this Article even
if it may also be admissible by virtue of this Article.
4 Notice
of proposal to adduce hearsay evidence
(1) Subject
to the following provisions of this Article, a party proposing to adduce
hearsay evidence in civil proceedings shall give to the other party or parties
to those proceedings –
(a) such
notice (if any) of that proposal; and
(b) where
so requested, such particulars of or relating to the evidence,
as is reasonable and practicable in the circumstances to enable that
party or parties to deal with matters arising from the fact that evidence is
hearsay.
(2) Rules
of Court may –
(a) specify
classes of proceedings or evidence in relation to which paragraph (1) does not
apply; and
(b) make
provision as to the manner in which (including the time within which) the
duties imposed by that paragraph are to be complied with in the cases where it
does apply.
(3) The
parties to the proceedings may exclude paragraph (1) by agreement and a party
may waive any requirement for notice to be given to him.
(4) A
failure to comply with paragraph (1), or with Rules of Court under paragraph
(2)(b), does not affect the admissibility of the evidence but the court may
take into account such failure –
(a) in
considering the exercise of its powers with respect to the course of
proceedings and costs; and
(b) as
a matter adversely affecting the weight to be given to the evidence in
accordance with Article 6.
5 Power
to call witness for cross-examination on hearsay statement
Rules of Court may provide that where a party adduces hearsay
evidence of a statement made by a person and does not call that person as a
witness, any other party to the proceedings may, with the leave of the court,
call that person as a witness and cross-examine him on the statement as if he
had been called by the first-mentioned party and as if the hearsay statement
were his evidence in chief.
6 Considerations
relevant to weighing of hearsay evidence
(1) In
estimating the weight (if any) to be given to hearsay evidence the court shall
have regard to any circumstances from which any inference can reasonably be
drawn as to the reliability or otherwise of the evidence.
(2) Regard
may be had, in particular, to the following –
(a) whether
it would have been reasonable and practicable for the party by whom the
evidence was adduced to have produced the maker of the original statement as a
witness;
(b) whether
the original statement was made contemporaneously with the occurrence or
existence of the matters stated;
(c) whether
the evidence involves multiple hearsay;
(d) whether
any person involved had any motive to conceal or misrepresent matters;
(e) whether
the original statement was an edited account, or was made in collaboration with
another or for a particular purpose;
(f) whether
the circumstances in which the evidence is adduced as hearsay are such as to
suggest an attempt to prevent proper evaluation of its weight.
7 Competence
and credibility
(1) Hearsay
evidence shall not be admitted if or to the extent that it is shown to consist
of, or to be proved by means of, a statement made by a person who was not
competent as a witness at the time he made the statement.
(2) For
the purposes of paragraph (1) –
(a) “not
competent as a witness” means suffering from such mental or physical
infirmity, or lack of understanding, as would render a person incompetent as a
witness in civil proceedings; but
(b) a
child shall be treated as competent as a witness if, in the opinion of the
court he understands that it is his duty to speak the truth and he has
sufficient understanding to justify his evidence being heard.
(3) Where
hearsay evidence is adduced and the maker of the original statement, or of any
statement relied upon to prove another statement, is not called as a
witness –
(a) evidence
which, if he had been so called, would be admissible for the purpose of
attacking or supporting his credibility as a witness is admissible for that
purpose in the proceedings; and
(b) evidence
tending to prove that, whether before or after he made the statement, he made
any other statement inconsistent with it is admissible for the purpose of
showing that he had contradicted himself.
(4) Despite
paragraph (3), evidence may not be given of any matter of which, if the maker
of the original statement, or of any statement relied upon to prove another
statement, had been called as a witness and had denied that matter in
cross-examination, evidence could not have been adduced by the cross-examining
party.
8 Previous
statements of witnesses
(1) Subject
to the following provisions of this Article, the provisions of this Law as to hearsay
evidence apply equally (but with any necessary modifications) in relation to a
previous statement made by a person called as a witness in the proceedings.
(2) A
party who has called or intends to call a person as a witness in civil
proceedings may not in those proceedings adduce evidence of a previous
statement made by that person, except –
(a) with
the leave of the court; or
(b) for
the purpose of rebutting a suggestion that his evidence has been fabricated.
(3) Paragraph
(2) shall not be construed as preventing a written statement of oral evidence
which a party to the proceedings intends to lead, from being adopted by a
witness in giving evidence or treated as his evidence.
(4) Where
any enactment or rule of law makes provision as to –
(a) how
far a witness may be discredited by the party producing him;
(b) the
proof of contradictory statements made by a witness; and
(c) cross-examination
as to previous statements in writing,
this Law does not authorize the adducing of evidence of a previous
inconsistent or contradictory statement otherwise than in accordance with such
enactment or rule.
(5) Paragraph
(4) is without prejudice to any provision made by Rules of Court under Article
5.
(6) Nothing
in this Law affects any rule of law as to the circumstances in which, where a
person called as a witness is cross-examined on a document used by him to
refresh his memory, that document may be made evidence in the proceedings.
(7) Nothing
in this Article shall be construed as preventing a statement of any description
referred to in this Article from being admissible by virtue of Article 3 as
evidence of the matters stated.
9 Evidence
admissible at customary law
(1) The
rule of law whereby in civil proceedings an admission adverse to a party to the
proceedings, whether made by that party or by another person, may be given in
evidence against that party for the purpose of proving any fact stated in the
admission is superseded.
(2) Any
rule of law whereby in civil proceedings –
(a) published
works dealing with matters of a public nature (for example, histories,
scientific works, dictionaries and maps) are admissible as evidence of facts of
a public nature stated in them;
(b) public
documents (for example, public registers, and returns made under public
authority with respect to matters of public interest) are admissible as
evidence of facts stated in them; or
(c) records
(for example, Acts of Court, treaties and commissions) are admissible as
evidence of facts stated in them,
shall continue to have effect.
(3) Any
rule of law whereby in civil proceedings –
(a) evidence
of a person’s reputation is admissible for the purpose of proving his
good or bad character; or
(b) evidence
of reputation or family tradition is admissible –
(i) for the purpose
of proving or disproving pedigree or the existence of a marriage, or
(ii) for the purpose
of proving or disproving the existence of any public or general right or of
identifying any person or thing,
shall continue to have effect in so far as it authorizes the court
to treat such evidence as proving or disproving that matter.
(4) Where
any rule referred to in paragraph (3) applies, reputation or family tradition
shall be treated for the purposes of this Law as a fact and not as a statement
or multiplicity of statements about the matter in question.
(5) The
words in which a rule of law mentioned in this Article is described are
intended only to identify the rule and shall not be construed as altering it in
any way.
10 Proof
of statements contained in documents
Where a statement contained in a document is admissible as evidence,
it may be proved –
(a) by
the production of that document; or
(b) whether
or not that document is still in existence, by the production of a copy of that
document (however many copies away from the original) or of the material part
of it,
authenticated in such manner as the court may approve.
11 Proof
of records of business or public authority
(1) A
document which is shown to form part of the records of a business or public
authority may be received in evidence without further proof.
(2) A
document shall be taken to form part of the records of a business or public
authority if there is produced to the court a certificate to that effect signed
by an officer of the business or authority to which the records belong.
(3) For
the purposes of paragraph (2) –
(a) a
document purporting to be a certificate signed by an officer of a business or
public authority shall be deemed to have been duly given by such an officer and
signed by him; and
(b) a
certificate shall be treated as signed by a person if it purports to bear a
facsimile of his signature.
(4) The
absence of an entry in the records of a business or public authority may be
proved by affidavit of an officer of the business or authority to which the
records belong.
(5) The
court may, having regard to the circumstances of the case, direct that all or
any of the provisions of this Article do not apply in relation to a particular
document or record, or description of documents or records.
(6) In
this Article –
“records” means records in whatever form;
“business” includes any activity regularly carried on
over a period of time, whether for profit or not, by any body (whether
corporate or not) or by an individual;
“officer” includes any person occupying a responsible
position in relation to the relevant activities of the business or public
authority or in relation to its records; and
“public authority” includes any public or parochial
authority, statutory undertaking, States department and person holding office under
the States or under Her Majesty.
12 Rules
of Court
(1) The
power of the Royal Court to make Rules of Court under Article 11 of the Royal
Court (Jersey) Law 1948[1] shall include power to make
such provision as may be necessary or expedient for carrying this Law into
effect.
(2) Rules
of Court made for the purposes of this Law in relation to proceedings in the
Royal Court shall apply to proceedings under the Arbitration (Jersey) Law 1998[2] –
(a) except
in so far as their operation is excluded by agreement; and
(b) subject
to such modifications as may be appropriate.
(3) Any
question arising as to what modifications are appropriate shall be determined,
in default of agreement, by the arbitrator.
13 Savings
(1) Nothing
in this Law affects the exclusion of evidence on grounds other than that it is
hearsay, whether the evidence falls to be excluded in pursuance of any
enactment or rule of law or for failure to comply with Rules of Court or an
order of the court, or otherwise.
(2) Nothing
in this Law affects the proof of documents by means other than those specified
in Article 10 or 11.
14 Citation
and commencement
This Law may be cited as the Civil Evidence (Jersey) Law 2003 and
shall come into force on such day as the States may by Act appoint.
C.M. Newcombe
Greffier of the States.