Challenging the claimant's monopoly on witness evidence and ‘protected hearsay’ in serious injury cases

This article was co-authored by Charles Bagot QC of Hardwicke Chambers.

In serious injury cases where a claimant has not provided a statement, expert reports may nonetheless be full of hearsay in relation to their history, ongoing complaints, aspirations and intentions for the future. This ‘protected hearsay’ evidence from a claimant underpins expert opinions and ultimately a judge’s findings, yet is not capable of direct challenge by a defendant if the maker is not called to give evidence.

Claimant legal advisers may therefore have a stark tactical advantage in relation to witness evidence, because they can decide whether the claimant will provide a formal statement. Opportunities to make submissions at trial about the weight that should be given to such evidence, or requests that ‘adverse inferences’ should be drawn, are too little, too late, when most cases settle beforehand.

Procedural solutions 

In order to provide equality of arms, defendants have unsurprisingly sought procedural opportunities to rebalance the claimant's monopoly on evidence, challenge protected hearsay and facilitate proper investigation of high-value claims.

The case of Brown v Mujibal [2017] confirmed the existence of a discretionary jurisdiction to permit a defendant to cross-examine a claimant on hearsay comments made about the effects of their injuries, despite that claimant not having served a witness statement. In that case, the court was influenced by the substantial size of the claim, the significant gap between the schedules of loss, by capacity being in dispute, and by a weight of expert evidence that, with reasonable adjustments, the claimant was fit for cross-examination.  

Kennedys, represented by Charles Bagot QC of Hardwicke, recently invoked the same jurisdiction in the case of FX GX v Hasan [2019]. In that case, mental incapacity was not disputed (although the parties’ experts differed as to whether there was a likelihood the claimant would regain capacity in future) but, as in Brown, there was extensive protected hearsay from the claimant in expert reports on key issues such as fitness for work, care needs, and long-term therapies. 

At the application hearing, the court concluded that this case was different to Brown because, in that case, the claimant's capacity had been in dispute. However, the rules for relying on hearsay evidence in the Civil Evidence Act 1995 had not been complied with. The claimant had not given proper notice by the deadline for exchange of witness evidence and the defendant was therefore protected in that the trial judge could attach little or no weight to such hearsay evidence.

Instead of an order for cross-examination, the judge therefore fixed a deadline by which the claimant could serve a witness statement and thereafter tender himself for cross-examination at trial, failing which adverse inferences could be drawn at trial if he failed to do so. As it happened, the claimant subsequently accepted a settlement offer shortly before the deadline for service of the statement expired.

Comment

This is a developing area of law, where defendants are rightly pushing the boundaries to seek out an equal footing in relation to witness evidence. The combined practical effect of the two cases appears to be as follows:

• The discretion to permit cross-examination of a claimant who has not provided a witness statement remains, depending on the case-specific facts.
• The discretion may be more limited in relation to claimants who lack capacity, depending potentially on medical evidence regarding their fitness for cross-examination.
• It remains to be seen whether the Court of Appeal, if asked to rule, would consider the fact of a dispute in relation to capacity, by contrast with an issue solely as to whether capacity might be regained in future, was a sufficient basis to distinguish the Brown and FX GX cases.
• Claimants risk adverse inferences if they do not serve a compliant notice to rely on any hearsay evidence.
• In the absence of such a notice, a claimant may still be given a deadline to serve a witness statement and agree to cross-examination or face little or no weight being placed on swathes of hearsay underpinning expert opinion. This will present a real evidential conundrum for claimant advisers, as the former course is unpredictable and the latter course potentially catastrophic to the prospects of proving the case.
• Any such cross-examination may require procedural and/or other safeguards of the type often invoked (mainly in the family and criminal jurisdictions) to permit vulnerable witnesses to give their ‘best evidence’.
• The proper exercise of this discretionary jurisdiction would benefit from further clarification at first instance or appellate levels.
• Applications will hopefully be a last resort in any event, because in many serious injury cases, the parties will be actively collaborating in relation to case preparation and the body of evidence required to facilitate a negotiated compromise as opposed to argue a trial.

Read more items in Personal Injury Brief - October 2019

Related item: Large loss claims: lessons in the importance of expert evidence