Statutory Instruments 1998 No. 3132 (L. 17)
The Civil Procedure Rules 1998
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PART 33

MISCELLANEOUS RULES ABOUT EVIDENCE




Contents of this Part
Introductory Rule 33.1
Notice of intention to rely on hearsay evidence Rule 33.2
Circumstances in which notice of intention to rely on hearsay evidence is not required Rule 33.3
Power to call witness for cross-examination on hearsay evidence Rule 33.4
Credibility Rule 33.5
Use of plans, photographs and models as evidence Rule 33.6
Evidence of finding on question of foreign law Rule 33.7
Evidence of consent of trustee to act Rule 33.8

Introductory
     33.1 In this Part - 

    (a) "hearsay" means a statement, made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated; and

    (b) references to hearsay include hearsay of whatever degree.

Notice of intention to rely on hearsay evidence
    
33.2  - (1) Where a party intends to rely on hearsay evidence at trial and either - 

that party complies with section 2(1)(a) of the Civil Evidence Act 1995[39] by serving a witness statement on the other parties in accordance with the court's order.

    (2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement - 

    (a) inform the other parties that the witness is not being called to give oral evidence; and

    (b) give the reason why the witness will not be called.

    (3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which - 

    (a) identifies the hearsay evidence;

    (b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and

    (c) gives the reason why the witness will not be called.

    (4) The party proposing to rely on the hearsay evidence must - 

    (a) serve the notice no later than the latest date for serving witness statements; and

    (b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.

Circumstances in which notice of intention to rely on hearsay evidence is not required
     33.3 Section 2(1) of the Civil Evidence Act 1995 (duty to give notice of intention to rely on hearsay evidence) does not apply - 

Power to call witness for cross-examination on hearsay evidence
    
33.4  - (1) Where a party - 

the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.

    (2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.

Credibility
    
33.5  - (1) Where a party - 

the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.

    (2) A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.

Use of plans, photographs and models as evidence
    
33.6  - (1) This rule applies to evidence (such as a plan, photograph or model) which is not - 

    (2) This rule includes documents which may be received in evidence without further proof under section 9 of the Civil Evidence Act 1995[40].

    (3) Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule.

    (4) Where the party intends to use the evidence as evidence of any fact then, except where paragraph (6) applies, he must give notice not later than the latest date for serving witness statements.

    (5) He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if - 

    (a) there are not to be witness statements; or

    (b) he intends to put in the evidence solely in order to disprove an allegation made in a witness statement.

    (6) Where the evidence forms part of expert evidence, he must give notice when the expert's report is served on the other party.

    (7) Where the evidence is being produced to the court for any reason other than as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.

    (8) Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.

Evidence of finding on question of foreign law
     33.7  - (1) This rule sets out the procedure which must be followed by a party who intends to put in evidence a finding on a question of foreign law by virtue of section 4(2) of the Civil Evidence Act 1972[41].

    (2) He must give any other party notice of his intention.

    (3) He must give the notice - 

    (a) if there are to be witness statements, not later than the latest date for serving them; or

    (b) otherwise, not less than 21 days before the hearing at which he proposes to put the finding in evidence.

    (4) The notice must - 

    (a) specify the question on which the finding was made; and

    (b) enclose a copy of a document where it is reported or recorded.

Evidence of consent of trustee to act
     33.8 A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person is evidence of such consent.



PART 34

DEPOSITIONS AND COURT ATTENDANCE BY WITNESSES




Contents of this Part
Scope of this Part Rule 34.1
Witness summonses Rule 34.2
Issue of a witness summons Rule 34.3
Witness summons in aid of inferior court or of tribunal Rule 34.4
Time for serving a witness summons Rule 34.5
Who is to serve a witness summons Rule 34.6
Right of witness to travelling expenses and compensation for loss of time Rule 34.7
Evidence by deposition Rule 34.8
Conduct of examination Rule 34.9
Enforcing attendance of witness Rule 34.10
Use of deposition at a hearing Rule 34.11
Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial Rule 34.12
Where a person to be examined is out of the jurisdiction - letter of request Rule 34.13
Fees and expenses of examiner Rule 34.14
Examiners of the court Rule 34.15

Scope of this Part
    
34.1  - (1) This Part provides - 

    (a) for the circumstances in which a person may be required to attend court to give evidence or to produce a document; and

    (b) for a party to obtain evidence before a hearing to be used at the hearing.

    (2) In this Part, reference to a hearing includes a reference to the trial.

Witness summonses
    
34.2  - (1) A witness summons is a document issued by the court requiring a witness to - 

    (2) A witness summons must be in the relevant practice form.

    (3) There must be a separate witness summons for each witness.

    (4) A witness summons may require a witness to produce documents to the court either - 

    (5) The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.

Issue of a witness summons
    
34.3  - (1) A witness summons is issued on the date entered on the summons by the court.

    (2) A party must obtain permission from the court where he wishes to - 

    (3) A witness summons must be issued by - 

    (4) The court may set aside(GL) or vary a witness summons issued under this rule.

Witness summons in aid of inferior court or of tribunal
    
34.4  - (1) The court may issue a witness summons in aid of an inferior court or of a tribunal.

    (2) The court which issued the witness summons under this rule may set it aside.

    (3) In this rule, "inferior court or tribunal" means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.

Time for serving a witness summons
    
34.5  - (1) The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.

    (2) The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.

    (3) A witness summons which is - 

is binding until the conclusion of the hearing at which the attendance of the witness is required.

Who is to serve a witness summons
    
34.6  - (1) A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.

    (2) Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.

Right of witness to travelling expenses and compensation for loss of time
    
34.7 At the time of service of a witness summons the witness must be offered or paid - 

Evidence by deposition
    
34.8  - (1) A party may apply for an order for a person to be examined before the hearing takes place.

    (2) A person from whom evidence is to be obtained following an order under this rule is referred to as a "deponent" and the evidence is referred to as a "deposition".

    (3) An order under this rule shall be for a deponent to be examined on oath before - 

(Rule 34.15 makes provision for the appointment of examiners of the court)

    (4) The order may require the production of any document which the court considers is necessary for the purposes of the examination.

    (5) The order must state the date, time and place of the examination.

    (6) At the time of service of the order the deponent must be offered or paid - 

    (7) Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.

(Part 32 contains the general rules about witness statements and witness summaries)

Conduct of examination
    
34.9  - (1) Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.

    (2) If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.

    (3) The examiner may conduct the examination in private if he considers it appropriate to do so.

    (4) The examiner must ensure that the evidence given by the witness is recorded in full.

    (5) The examiner must send a copy of the deposition - 

    (6) The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.

Enforcing attendance of witness
    
34.10  - (1) If a person served with an order to attend before an examiner - 

a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.

    (2) On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.

    (3) An application for an order under this rule may be made without notice.

    (4) The court may order the person against whom an order is made under this rule to pay any costs resulting from his failure or refusal.

Use of deposition at a hearing
    
34.11  - (1) A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise.

    (2) A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.

    (3) He must serve the notice at least 21 days before the day fixed for the hearing.

    (4) The court may require a deponent to attend the hearing and give evidence orally.

    (5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of rule 32.13 (availability of witness statements for inspection).

Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial
    
34.12  - (1) Where the court orders a party to be examined about his or any other assets for the purpose of any hearing except the trial, the deposition may be used only for the purpose of the proceedings in which the order was made.

    (2) However, it may be used for some other purpose - 

Where a person to be examined is out of the jurisdiction - letter of request
    
34.13  - (1) Where a party wishes to take a deposition from a person outside the jurisdiction, the High Court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is.

    (2) A letter of request is a request to a judicial authority to take the evidence of that person, or arrange for it to be taken.

    (3) The High Court may make an order under this rule in relation to county court proceedings.

    (4) If the government of the country to which the letter is sent allows a person appointed by the High Court to examine a person in that country, the High Court may make an order appointing a special examiner for that purpose.

    (5) A person may be examined under this rule on oath or affirmation or in accordance with any procedure permitted in the country in which the examination is to take place.

    (6) If the High Court makes an order for the issue of a letter of request, the party who sought the order must file - 

    (7) There is no need to file a translation if - 

Fees and expenses of examiner
    
34.14  - (1) The examiner may charge a fee for the examination.

    (2) He need not send the deposition to the court unless the fee is paid.

    (3) The examiner's fees and expenses must be paid by the party who obtained the order for examination.

    (4) If the fees and expenses due to an examiner are not paid within a reasonable time, he may report that fact to the court.

    (5) The court may order the party who obtained the order for examination to deposit in the court office a specified sum in respect of the examiner's fees and, where it does so, the examiner will not be asked to act until the sum has been deposited.

    (6) An order under this rule does not affect any decision as to the party who is ultimately to bear the costs of the examination.

Examiners of the court
    
34.15  - (1) The Lord Chancellor shall appoint persons to be examiners of the court.

    (2) The persons appointed shall be barristers or solicitor-advocates who have been practising for a period of not less than three years.

    (3) The Lord Chancellor may revoke an appointment at any time.






Notes


[39] 1995 c.38. Section 2 provides that a party proposing to bring hearsay evidence must notify any other party of that fact and, on request, give particulars of or relating to the evidence.back

[40] Section 9 of the Civil Evidence Act 1995 provides that documents that form part of the records of a business or public authority, as defined in that section, may be received in evidence without further proof.back

[41] 1972 c. 30.back



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