James Farmer


Evidence - Notes of Presentation to Continuing Legal Education Seminar November 2014

Monday, December 01, 2014

Reasons for rules of evidence

Why do we have rules of evidence?  Are they only paid lip service in civil cases (as suggested by some)?

It would be fair to say that it is only the last 20 years and particularly in the last 8 years since the enactment of the Evidence Act 2006 that lawyers and Judges have made serious attempts to ensure that the rules of evidence are applied in civil cases and there is a direct correlation between the issues as they emerge from the pleadings and the evidence (oral and documentary) that is led. This coincides with the advent of the written brief or statement of evidence which many, if not most, lawyers saw as an invitation to combine evidence of facts with submissions in the one document and through the mouth of a witness supposed to be a witness of fact alone.  The phenomenon that has always existed of expert witnesses becoming advocates was thus transformed on to a much larger scale – namely factual witnesses also became advocates and expressed opinions on all matters of things, notwithstanding the prohibition on their doing so.  In addition, the written brief became a repository for material that was at best peripheral and at worst completely irrelevant to the pleaded issues and often intended to create prejudice against the opposing party.

Fortunately, the Evidence Act 2006 brought to the forefront of civil litigation the fact that there was indeed a body of rules – now put in statutory form – that governed the evidence that could, and could not, be led in court.  It also served to highlight what it called the “fundamental principle” that evidence that was relevant to the issues was admissible (section 7).  That could perhaps have been better stated as evidence that is not relevant is inadmissible.  But no matter – they are 2 sides of the same coin.

Providing excellent support to section 7 is section 8 which directs a Judge to exclude evidence if its probative value is outweighed by the risk that the evidence will either have an unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding.  It is ironic that the promoters of the written brief (comprising both Judges and lawyers) had in fact by that medium significantly increased the opportunity for both creating prejudice and lengthening court hearings. Not only did longer briefs (read aloud in court by the witness) lead to more time but the irrelevant and peripheral and prejudicial usually attracted counter briefs of a similar kind and cross examination by counsel who were not confident in leaving this material alone.

The basic rationale for exclusionary rules of evidence are also stated in section 6 of the Act which states that the purpose of the Act is to help secure the just determination of proceedings by (inter alia):

  1. Providing for facts to be established by the application of logical rules; and …
  2. Promoting fairness to parties and witnesses; and 
  3. Avoiding unjustifiable expense and delay; and
  4. Enhancing access to the law of evidence.

 A common phenomenon in previous years (not entirely eliminated today) is for Judges who are asked during the course of a trial to rule on an objection to particular evidence as it is led to admit the evidence provisionally or de bene esse, supposedly leaving the admissibility of that evidence to be determined at a later point of the trial (usually closing submissions).  The usual justification given by a Judge for taking this course is that at that stage of the trial the issues may not have been clarified or the Judge is yet to become familiar with them.  Frankly, with the filing of written openings before the hearing and the presentation of an opening (sometimes followed immediately by a short opening statement from defence counsel), there is no excuse for not heeding the words of Lawton LJ in the English Court of Appeal almost 20 years ago in Rolled Steel Ltd. v. British Steel Corporation [1986] 1 Ch. 246 (CA) at 309-310.  His Lordship said:

“I wish, however, to add a comment about the pleading points which had to be considered in this appeal.  From the way they were raised by counsel and dealt with by the trial judge I was left with the impression that neither the judge nor defending counsel appreciated as fully as they should have done the need for precision and expedition when dealing with pleading points  My recent experience in this courts shows that some counsel and judges are not giving pleadings the attention which they should.  Pleadings are formal documents which have to be prepared at the beginning of litigation.  They are essential for the fair trial of an action and the saving of time at trial.  The saving of time keeps down the costs of litigation.  A plaintiff is entitled to know what defences he has to meet and a defendant what claims are being made against him.  If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led. Pleadings regulate what questions may be asked of witnesses in cross-examination.  When counsel raises an objection to a question or a line of questioning, as [counsel] did on a number of occasions, the trial judge should rule on it at once.  He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so.  If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended.  If he decides that they should, he should forthwith apply for an amendment and should specify precisely what he wants and the judge should once give a ruling on the application.”

The considerations of relevance, fairness, efficiency, expedition and saving of costs are evident throughout that passage.

It should be noted that section 14 of the Evidence Act does make provision for the admission of evidence provisionally but on a specific basis.  The section says that if a question arises as to the admissibility of any evidence, the Judge may admit that evidence subject to evidence being later offered which establishes its admissibility.  That is not a general warrant for deferring a ruling simply because the Judge is unclear.  It is directed at a situation where a factual foundation has not been laid which would make that evidence admissible but where it is anticipated that such a foundation will be established later in the hearing.

Documentary evidence

Documentary evidence has its own set of rules and modes of proof.  Sensibly, we have moved a long way from the position that used to pertain that a document had to be formally identified and proved by a witness who was then quaintly asked by counsel if he would “produce” the document to the Court.  For a long time, I have certainly adopted the practice in commercial cases in particular, which are characterised by large quantities of business records and documents which have been the subject of discovery by one side or the other and the authenticity of which can hardly be in doubt, of tendering the documents from the bar table after referring to them during the opening address.

That practice has now been formalised both in the Evidence Act and in the High Court Rules.

Section 130 of the Act provides that, on giving prior notice, a party may offer a document as evidence without calling a witness to produce the document.  Objection can be taken to the authenticity of the document but otherwise it will be presumed, in the absence of evidence to the contrary, that the nature, origin, and contents of the document are as shown on its face.

The High Court Rules fill out the detail in Part 9, through the common bundle process.  The principal procedural requirements – settling an agreed index and preparation of the bundle – are contained in rules 9.1-9.4.  In practice, the bundles have tended to come too close to the commencement of the trial for counsel to have an adequate opportunity to consider their admissibility.  This can lead to real difficulty in the light of amendments that were made to the rules within the last few years that makes the mere inclusion of a document in the common bundle admissible unless an objection to its admissibility is recorded in the bundle (rule 9.5(2)).  Fortunately, the words “if practicable” are included in the statement of that requirement and the Court does have a residual power under rule 9.5(6) to direct that rule 9.5 or any part of it is not to apply to a particular document.  However, the practicalities of sorting out the relevance of each of what may be a very large bundle of documents (including hundreds of emails) in advance of the hearing – as the primary obligation – remain.

Rule 9.5 also sets out the mode of getting a document from the bundle and into evidence in 9.5(4).  That provides that “a document in the common bundle is automatically received into evidence (subject to the resolution of any objection to admissibility) when a witness refers to it in evidence or when counsel refers to it in submissions (made otherwise than in a closing address).” This last qualification is important because of the traditional requirement that a party formally closes its case when it has led all the evidence upon which it intends to rely.

If a document is not included in the bundle, it can only be produced at the trial with the leave of the court (rule 9.6(1).  The court may grant leave to produce the document if it has been discovered if its production will not cause an injustice and may refuse leave if it is not discovered and if its production might cause an injustice (rule 9.6(2)(3)).

Witness evidence

Aside from documents, section 83 of the Evidence Act and rule 9.51 of the High Court Rules both provide that the ordinary way for a witness to give evidence is orally.  In civil cases this may be by written statement (brief) or by affidavit but in the case of the latter only if the parties agree or the court orders (rule 9.56).  The rules as to the form and use of affidavits are to be found in Part 9, rules 9.69-9.86. Notice of a wish to cross examine must be given under rule 9.74.  Evidence in cases that are brought under Part 18 of the High Court Rules (including applications in equity and under listed statutes including the Declaratory Judgments Act, the Family Protection Act and Trustee Act) is by affidavit (rule 18.15).

Written briefs are governed by rules 9.7-9.14.  Of considerable importance in the quest to the abuses that I have outlined above is rule 9.7(4) which provides (inter alia) that:

  1. The brief must be in the words of the witness and not in the words of the lawyer involved in drafting the brief;
  2. The brief must not contain inadmissible evidence;
  3. The brief must not contain any material in the nature of a submission;
  4. The brief must avoid repetition;
  5. The brief must avoid the recital of the contents or a summary of documents that are to be produced in any event;
  6. The brief must be confined to the matters in issue.

Rule 9.7 was promulgated in February 2013, as was rule 9.10 which empowers the court to give an “oral evidence direction” where there are significant facts that are disputed.  This will most commonly arise where the credibility of witnesses giving opposing evidence of such facts is likely to be in issue.  It is a kind of half-way house between the giving of all evidence by written brief and the giving of all evidence on disputed facts orally.

Note should be taken of rule 9.11 which requires any challenge to the admissibility of a brief, in whole or in part, must be notified within 20 working days after service of the brief. If the issue is not then resolved between counsel within a further 10 working days, the court must be given notice by the challenging party that there is an admissibility issue. Consideration should then be given as to whether that issue is left to trial or an application made for a pre-trial ruling.  The advantage of the latter course is that it will determine whether or not reply evidence or cross examination is needed.  The disadvantage will be added expense and finding time in the court calendar for dealing with it.

Finally, may I put in a plea for not including in time tables reply briefs from a plaintiff to a defendant’s briefs.  There is no provision in the rules for that, for the very good reason that a plaintiff is not permitted to split its case. Different considerations of course arise with counterclaims or affirmative defences. Practical difficulties also arise if a plaintiff’s witness reads the brief in chief followed by the reply brief, the latter being read before the defendant has even opened its case and irrespective of whether the defendant chooses not to call the witness concerned.  (The service of a brief does not oblige the party to call that witness at trial.) The way for a plaintiff to deal with matters raised in a defendant’s briefs that have not been anticipated is to make use of the supplementary brief provisions or supplementary oral questioning (rule 9.8) but without referring specifically to the defendant’s briefs. 


It is apparent from what I have set out above that the rules of evidence and the rules of how evidence (oral and documentary) is given are not lacking in technicality.  However, as stated at the beginning of this paper they serve a genuine purpose, which can be summarised as an attempt to confine the length of hearings and to restrict the evidence that is led to the issues that emerge from the pleadings.

1 December 2014

Jim Farmer

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