PRACTICAL LAW DISPUTE RESOLUTION: CASE OF THE MONTH

Evidence from Ukrainian criminal investigation admissible in English civil proceedings as hearsay evidence of fact or opinion (High Court)

In a regular slot, Beverley Barton, Senior Editor in the Practical Law Dispute Resolution team, selects a case of particular interest reported on by Practical Law during the previous month.

Subscribers to Practical Law Dispute Resolution can access further analysis and practical guidance on this case, and other judgments, on the Practical Law Dispute Resolution website (www.practicallaw.com ).

In a claim under the Forfeiture Act 1982, the court considered the defendant’s application to restrict evidence relied on by the claimants on the basis that it was expert evidence and inadmissible without the court’s permission.

Chief Master Marsh’s judgment, dismissing the application, helpfully summarises and explains the principles governing admissibility of opinion evidence (hearsay or otherwise) in civil proceedings, discussing authorities including Hoyle v Rogers [2014] EWCA Civ 257 and Illumina, Inc v TDL Genetics Ltd [2019] EWHC 1159 (Pat).

P died when struck by a vehicle in Ukraine. The claimant executors of P’s estate (C) asserted that P’s wife (M) should be treated as having unlawfully killed P (forfeiting any inheritance). M applied to exclude certain evidence adduced by C, namely:

  • Part of a private investigator’s (S) witness statement, stating that M was close to the scene of the accident and that the police investigator told him this.
  • “Maps” annotated by S with M’s whereabouts after P’s death, using information from the police investigator.
  • A “Protocol”, produced by an official Ukrainian investigator (Z) based on M’s mobile phone records, pinpointing the locations of M’s phone.

M submitted that S’s evidence and the Protocol were expert evidence, and inadmissible without the court’s permission.

The master noted that relevant opinion evidence is only admissible if it concerns a matter about which the witness is qualified to give expert evidence (Civil Evidence Act 1972, section 3). CPR 35 was inapplicable here because the evidence was not obtained for these proceedings.

He further observed that experts often provide both factual and opinion evidence. Sometimes, the evidence is merely evidence of facts observed that are only understandable when an expert explains them; sometimes, the expert may also provide an observation-based opinion.

 

Here:

  • S’s evidence was admissible hearsay. Either the information underlying S’s maps did not require an expert to express an opinion (so the evidence was a hearsay fact), or the evidence was derived from an as yet unnamed expert’s opinion based on analysis of phone records.
  • The Protocol was a formal document compiling evidence for a pre-trial criminal investigation. It was broadly analogous to the report in Hoyle v Rogers,and admissible as hearsay evidence (either of fact, or of fact and opinion). Whether the compilation had required an expert was unclear but, on its face, it derived from a review by Z (whose technical expertise was unknown) of M’s phone records.

(Gregory and another v Moore and others [2019] EWHC 2430(Ch) (23 September 2019) (Chief Master Marsh).)