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Charnock v Rowan and Others, Court of Appeal, 20 January 2012

3 February 2012
The issues

Hearsay evidence – Denton Hall Legal Services v Fifield – reliance on matters contained in medical documents

The facts

In Denton the Court of Appeal had stated that what was contained in a record as having being told to adopt by patient was not when written down, evidence of the making of the statement that he recorded

On the 30 June 2007 a car hit a stationary bus. The damage was slight. 14 passengers on the bus claimed that they suffered whiplash injuries. 10 of them succeeded in establishing liability in the proceedings under appeal. The second defendant’s, the first defendant’s insurers, were suspicions of the claims. The suspicions initially were founded on the sheer unlikelihood of so many passengers suffering remarkable similar trauma from a very minor jolt and they were fortified in those suspicions by their engineering expert, Mr Parkin, who concluded that to reach the conventionally accepted threshold for collision trauma (Delta V) respresenting here an enforced movement of three mph, the car would have to be travelling at 30mph, whilst the damage was inconsistent with the collision speed for more than 15 mph. The defendant’s also believed the claimants accounts were pock marked with inconsistencies. The claimants at trial were cross examined on the basis of their medical reports in order to highlight discrepancies between what they said at trial and what they said to the doctors who had treated them or examined them for forensic purposes. Use was made of the reports routinely exchanged and part of the agreed court bundle. No objection was taken on the claimants behalf. The judge was critical of this procedure. He pointed out that insurance fraud was a serious matter and should not be alleged on the basis of mere suspicion but must be based on proper and admissible evidence managed and presented in accordance with procedural laws and rules. He relied on the decision of the Court of Appeal in Denton and Hall Legal Services v Fifield which recommended that where a party which sought to contradict a factually pleaded case on the basis of medical reports or records should indicate that intention in advance either by amendments to the pleadings or informal notice. It was then for the opposite party to indicate the extend to which they took objection to the accuracy of the records. Thereafter, a decision according to Denton would have to be taken as to whether the records needed to be formally proved. The judge took the view in this case that had the defence been properly conducted, formal notice would have been given of the insurer’s intention to rely on hearsay contained in the medical report. This might have resulted in the claimants requiring their doctor to attend cross examination. As it was, according to the judge, the claimants were denied those opportunities, that opportunity by these issues only being raised in cross-examination at trial. He concluded that when weighing weight and veracity he would take into account this situation, namely that the matters had only been put in cross examination not heralded in advance and were based upon hearsay evidence that, although admissible and admitted had not been put in place with the proper formality demanded by the interest of justice. Thereafter, he found for the claimants, the defendant appealed on the basis that the judges handling of issue was wrong in law and contaminated the factual findings which followed.

The decision

The short answer to the appeal was that whatever the criticism of the judges approach and the correctness of it, there was nothing in the judges fact finding which suggested that he had gone any distance in applying his view of the law in practice. In the handling of the evidence, he had done all that was required of him. The appeal could not therefore succeed even if the legal submissions of the defendant’s were correct. In Denton the Court of Appeal had stated that what was contained in a record as having being told to adopt by patient was not when written down, evidence of the making of the statement that he recorded. Both parties took the view that s.1 of the Civil Evidence Act 1995 in fact made such a statement admissible. S.2.(1) of the act required the parties to give such prior notice of intention to adduce hearsay as was reasonable and practical in the circumstances. S.2(2) authorised the making of provisions by rules of court either to dis-apply this requirement or to regulate it. This had been done by CPR 33.3 which waived the need for notice where a practice direction so provided. The practice direction at CPR PD 32.27 said: “all documents contained in bundles which had 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”. It might be said that this reversed the notice requirement set out section 2(1) and equally that the effect was treat the agreement of a bundle as the requisite notice leaving it to the objecting party to serve what was in substance a document specific counter notice. It had been argued for the claimants that more was needed for the admission of such a hearsay than simple agreement of a court bundle. That argument sat ill with the practice direction and was an invitation to an almost limitless and costly wrangling both before and at trial. It might be that in straightforward litigation the answer to the problem lay in ensuring that the opposing case was properly pleaded, if need be by amendment following disclosure. From that point the obligation would lie on each parties lawyers to go through the agreed documents with the client or witness and take instructions on any discrepant evidence, all be it hearsay, relevant to the pleaded issues. A party however, which had failed to plead its case with sufficient clarity might well find itself barred from adducing any evidence, hearsay or not in support of an unpleaded intention.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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