Charnock and Ors v Rowan and Ors - December 2011
Charnock and Ors v Rowan and Ors - December 2011
Held
That the trial judge had not devalued the Defendants’ evidence of inconsistency as he had plainly dealt with and fully considered those inconsistencies throughout his judgment. The question was whether that evidence caused him to disbelieve the Claimants at trial. Leading Counsel for the Defendants accepted that there was no evidence in the judgment that the findings had been affected by the judge’s approach to weight and the Court therefore held that the appeal must fail.
The Court of Appeal then went on to consider, obiter, the requirements of admitting hearsay evidence contained in documents. Section 2(1) of the Civil Evidence Act 1995 states that prior notice of intention to adduce hearsay evidence is required and section 2(2) sets out that the rules of court can either disapply this requirement or regulate its implementation. CPR 33.3 waives the need for notice where a practice direction provides as such and at 32 PD 27 it is stated that “all documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents unless a) the court orders otherwise or b) a party gives written notice of objection to the admissibility of particular documents.”
The Claimants submitted that more than the production of the agreed bundle is needed to provide notice of the fact of reliance on hearsay. In dealing with this point, the Court said that the practice direction provided for the bundle to constitute notice. However, where there is essentially straightforward litigation the parties should make sure that the opposing case is properly pleaded. From that point on the obligation lies with the lawyers to go through the agreed documents with the client and take instructions on any inconsistent evidence. If the case has not been pleaded with enough clarity then a party may find itself barred from adducing any evidence (hearsay or not) in support of an unpleaded contention. The Defence in this case was noted to be somewhat thin on specific allegations.
Comment
This case is interesting and useful to any PI lawyers who deal with or may need to deal with claims in which fraud is alleged. Although the Court of Appeal’s comments are obiter in respect of the hearsay point, it is clear that if the defendant has pleaded a point fully, he may rely on any evidence in the agreed trial bundle to support it and need not serve a formal notice of his intention to rely on any hearsay within it. It is plain that in those circumstances, the agreed bundle can constitute notice of intention and claimant lawyers will need to carefully scrutinise those documents within it for any hearsay. However, it is equally plain that the defendant is unlikely to be able to ambush that Claimant with hearsay evidence in the agreed bundle if he has not set out his case clearly in the pleadings.
Mr Frank Burton QC for the Claimants.