CONSULTATION PAPER

THE BEST EVIDENCE RULE IN CIVIL PROCEEDINGS

JERSEY LAW COMMISSION

CONSULTATION PAPER NO 3 October 1999

The Jersey Law Commission was set up by a Proposition laid before the States ofJersey and approved by the States Assembly on 30th July 1996.

TheCommissioners

are:

Advocate Keith Baker,Chairman

Mr David Lyons, EnglishSolicitor

Mr David Moon, Solicitor

Advocate Alan Binnington

Mr. Clive Chaplin, Solicitor

Advocate John Wheeler

The Jersey Law Commission invites comments in writing on this Consultation paperbefore 31 January, 2000. The address of the Jersey Law Commission is:

PO Box 87St HelierJersey

JE4 8PX

Fax no: 01534 609333

This paper is also published on the Commission’s Internet pages, which may befound through the a-z index within the Jersey government’s web site at:

http://www.jersey.gov.uk

THE JERSEY LAW COMMISSION

CONSULTATION PAPER

THE BEST EVIDENCE RULE IN CIVIL PROCEEDINGS

CONTENTS

1. Definition of the Rule

2. The Problems to be Addressed

3. The Position in Jersey

4. The Position under English Law

4.2 The 1968 Reforms

4.3 The English LawCommission’sRecommendations in1993

4.4 Civil Evidence Act1995

5. Conclusions and Recommendations

6. Questions for Consultation

Appendices –

A. Provisional Conclusions of theEnglish Law Commission

B. Summary of Recommendations of theEnglish Law Commission

THE BEST EVIDENCE RULE IN CIVIL PROCEEDINGS

The Law Commission is enquiring into the usefulness of the hearsay rule in civilproceedings and whether the rule against hearsay evidence should be retained inwhole or in part.

1. Definition of the Rule (Contents List)

1.1 It is a general rule that the bestevidence of which the nature of the case willadmit must be produced if it can possibly beobtained; if not, then the next best evidence

that can be obtained is admitted. As ageneral rule where a written document is tobe used as proof, the original documentmust be produced and proved and where afact can be proved by persons who actuallysaw or heard it, they must be called.

1.2 Hearsay in general terms prevents aperson testifying to the truth of what he hasbeen told by another person. Cross'sformulation of hearsay is that:

"an assertion other than one made by aperson while giving oral evidence in theproceedings is inadmissible as evidence ofany fact asserted."

(Cross on Evidence (7th Edition 1990) p.42)

1.3 This formulation covers not only theexclusion of assertions by persons who donot give oral evidence at the trial (which ishearsay in the strict sense of the term), butalso the exclusion of previous statements bypersons who do give evidence at the trial.Assertions may be made orally, in writing orby conduct. If made for the purpose ofproving a fact, the assertion is caught bythe common law rule and renderedinadmissible.

1.4 The applicability of the rule to assertionsmade orally or in writing is easy to see. "A"is not allowed to give evidence in Court ofwhat "B" told him or what he saw in adocument if the purpose is to assert thetruth of what was heard or read. The rulealso covers conduct which is assertive of afact in issue. For instance a dying victim'ssigns to witnesses in response to thequestion of who had attacked him are saidto be assertive of the truth of the identity ofhis attacker and would be inadmissible.

If English Common Law is applied some of adying victim's signs to a witness may beadmissible and others may not. There needsto be sufficient evidence that the deceasedknew he was in a dying state at that timeand has a hopeless expectation of imminentdeath.

1.5 A significant exception to the HearsayRule is the common law doctrine of ResGestae, whereby a fact or statement of factor opinion which is so closely associated intime, place and circumstances with someact or event which is in issue that it can besaid to form part of the same transaction asthe act or event in issue, is itself admissiblein evidence. The justification given for thereception of such evidence is the light that itsheds upon the act or event in issue; in itsabsence, the transaction in question maynot be fully or truly understood and mayeven appear to be meaningless, inexplicableor unintelligible. Evidence of both facts andstatements may be received as part of theRes Gestae. The evidence which may bereceived as part of the Res Gestae may bebroadly divided into four categories;

(i) Statements by participants in or observers of events;

(ii) Statements concerning the maker's performance of an act;

(iii) Statements concerning the maker's state of mind or emotion; and

(iv) Statements of physical sensation.

The application of the doctrine of Res Gestaewithin Jersey is far less developed, and itsapplication within civil proceedings wouldnot appear to have been tested before theJersey Courts. However, in the criminal caseof Lundy-v-Attorney General 1996 JLR 193CA, the application of the doctrine withincriminal cases was clearly accepted by theCourt.

2. The Problems to be Addressed (Contents List)

2.1 Overheard statements and other indirectevidence and documents which recite factswhich might be highly relevant to the justdetermination of issues before the Courtcannot be admitted as evidence of the factscovered by them.

2.2 For evidence produced by computers orother technology to be admissible before theCourt it has to be adduced by theappearance in Court of the person operatingthe machine or if appropriate be supported

by an affidavit sworn by that person. It mayalso be necessary where human interventionin the process is involved for those whohave intervened to give evidence before theCourt. For example, where the originator ofthat data, say a meter reader or some otherperson involved in "logging" information,passes that information to a person whothen inputs that data into a computer, bothpersons may need to give evidence. Themeter reader's manual records are likely tohave been destroyed shortly after inputting.The reliability of such evidence is clearlydifficult to establish and often can at bestrely upon assumptions.

2.3 The widespread use of computers,scanning devices, microfilm, the internetand other technology in all aspects ofpersonal, professional and business life giverise to questions as to the legal implicationsof holding computer recorded data anddocument "imaging" and their use asevidence in legal proceedings.

2.4 The main questions to be addressedare:-

The implications of transferring computergenerated records direct to computer disc,thus avoiding the need to print such recordson paper. This also applies to customerstatements, which may be currentlytransferred to microfilm after printing, butwhich could be retained on computer discand not printed.

(2) Whether paper records received by acompany could be transferred on tocomputer disc via a data image processingsystem and the original paper recordsdestroyed.

(3) The admissibility of such records inevidence.

2.5 Many of the issues raised result from theapplication of relatively recent technologyand as such have not yet been addressed bythe Jersey Courts. The best evidence rulerequires that the evidence should be thebest the case will allow. Of obvious interest,

therefore, is the question of the destructionof original documents and their replacementwith electronically recorded copies.

2.6 The States of Jersey have addressedthis question to a limited extent in enactingthe Companies (amendment No. 3) (Jersey)Law 1997, which, inter alia, substituted forarticle 202 of the Companies (Jersey) Law1991 Articles 201A and 202 which enablesthe Registrar of Companies to record theinformation contained in documents in anyform approved by the Finance andEconomics Committee, that can itself beinspected and can be copied in legible formand, having done so, he is permitted todestroy the original documents immediately.Copies of or extracts from records so made,certified in writing by the Registrar, underhis seal, as accurate, are admissible inevidence in all legal proceedings as of equalvalidity with the original record and asevidence of any fact stated in it of whichdirect oral evidence would be admissible.

2.7 The Bankers Books Evidence (Jersey)Law, 1986 also seeks to overcome some ofthe difficulty associated with the hearsayrule but gives rise to certain problems whichhave not yet been decided by the Courts.

2.8 The law contains a very wide definitionof "bankers books", viz:-

"Art. 1 (2) To conform to other suchreferences Expressions in this law relating toAbankers books@ include ledgers, daybooks, cash books, account books and otherrecords used in the ordinary business of thebank, whether those records are in writtenform or are kept on microfilm, magnetictape or any other form of mechanical orelectronic data retrieval mechanism"[underlining inserted]

2.9 Furthermore, Articles 2 and 3 of the Actprovide that ".........a copy of any entry in abanker=s books shall in all legalproceedings be received as prima facieevidence of such entry........" (Article 2)provided that "..........it be first proved thatthe book was at the time of the making of

the entry one of the ordinary books of thebank, and that the entry was made in theusual and ordinary course of business, andthat the book is in the custody or control ofthe bank." (Article 3 (1)).

2.10 The effect of Article 3(1) is uncertain,there having been no reported cases to datein which its application has been considered.This raises the question of whetherdocuments received by the bank beforebeing scanned, and the original destroyed,fall within the definition of the "ordinarybooks of the bank" - it is certainly arguablethat they are actually copies of the ordinarybooks of the sender.

2.11 However, it is likely that these receivedrecords will be regarded as part of the"bankers books", as part of the ".....otherrecords used in the ordinary business of thebank........" (Article 1(2)).

2.12 A second potential stumbling block liesin relation to the verification of copies underArticle 4, which provides that:-

"Art. 4 (1) - A copy of an entry in a banker'sbook shall not be received in evidence underthis law unless it be further proved that thecopy has been examined with the originalentry and is correct.

Art. 4 (2) - Such proof shall be given bysome person who has examined the copywith the original entry........."

2.13 The question which arises here iswhether the term "original entry" refers tothe entry in the original document fromwhich the copy was made, as used by acompany to be entered in its records, orwhether the entry into a bank's bankersbooks, whether computer or otherwise,would constitute the Aoriginal@ againstwhich a copy could be checked (althoughthere is a discretion in RSC Ord. 38., r.3(2)(c) to order that evidence of any particularfact be given by copies of documents).

2.14 Since the question has not yet arisen inthe Jersey Courts, it is interesting to note

that in relation to the English Bankers'Books Evidence Act 1879, where therequirement for checking the copy againstthe original is virtually identical, the courtshave held that copies of letters written by abank and contained in a file of itscorrespondence do not constitute bankersbooks (R-v-Dadson (1983) 77 Cr App Rep91 (CA)).

2.15 As a result of this new technology itmay be that a party to proceedings could beadversely and unfairly affected and adifferent decision given by the Court solelyas a result of this rule of evidence.

3. The Position in Jersey (Contents List)

3.1 The position under Jersey law wouldappear to reflect the common law positionconcerning hearsay which prevailed withinEngland and Wales prior to the enactment oflegislation modifying the position within thatjurisdiction. That position appears to havebeen approved by implication in a number ofJersey cases, many of which relate tocriminal trials:

Attorney General v. Kelly [1982] JJ 275CA;

This case clearly indicated the position inregard to hearsay, the Court stating at 282:

"The first question the Court has to decide iswhether the additional evidence is legallyadmissible for the limited purpose proposedby the Attorney General. The Court has nodoubt that it is. We have been referred tothe case of Subramaniam v. PublicProsecutor [1956] I W.L.R. 965, and at page970 the following principle is stated"Evidence of a statement made to a witnessby a person who is not himself called as awitness may or may not be hearsay. It ishearsay and inadmissible when the object ofthe evidence is to establish the truth of whatis contained in the statement. It is nothearsay and is admissible when it isproposed to establish by the evidence, notthe truth of the statement, but the fact thatit was made". That principle, it appears to

us, clearly sets out the law."

Attorney General v. Christopher EugèneCurtin (8 January 1992) JerseyUnreported Judgments RC:

The Court stated;

"The rule against hearsay is stated atArchbold - Criminal Pleading Evidence andPractice - 43rd edition, paragraph 11 - 3 atp.1084:

"Former statements of any person, whetheror not he is a witness in the proceedings,may not be given in evidence if the purposeis to tender them as evidence of the truth ofthe matters asserted in them, unless theywere made by a defendant and constituteadmissions of fact, relevant to thoseproceedings."

It was not disputed that the evidence of thatwhich the child had said was hearsay andtherefore inadmissible."

Pacific Investments Limited v.Christensen and Others, (24 November1995) Jersey UnreportedJudgments,CA;

The Court stated that:

A"Mr Michel submitted that the Judgment inthe T.R. Case, even if relevant in a non-legalsense, did not constitute evidence at all inthis case. References to it, he said, oughtnot to have been included by Mr Moore inhis affidavit, and, having been included,ought to be ignored. Hearsay evidence, withidentification of its source, is permissible inan affidavit. Mr Michel submitted, however,that Mr Moore's references to Hoffmann J.'sJudgment were not merely simple hearsay,i.e. statements of what the Judge had said,but double hearsay, i.e. statements of whatthe Judge said he had derived fromevidence in the T.R. Case. Mr Michelcontended, on the authority of the Englishcase of Savings & Investment Bank, Ltd. v.Gasco Investments (Netherlands) B.V.[1984] 1 WLR 271, that such double

hearsay is not admissible in an affidavit.

The significance of this case in clarifying theissue of hearsay within Jersey isquestionable, since the Court stated "It isnot necessary to consider the authority ofthat decision or its applicability to thepresent case. There are other grounds uponwhich the findings of fact made in the TRCase, as distinct from the Judge's commentsupon them, are admissible in this caseagainst the Appellants", going on to statethat

"There is no sign in Hoffman J.'s judgmentthat he had had to resolve any conflict ofevidence...The issues which did arise wereissues of law, viz. whether the facts showedproper compliance with S.212 or justifiedthe imposition of penalties of S.216"

Lundy v. Attorney General (1996) JLR193 CA;

At 203; the Court again cited the case ofSubramaniam v. Public Prosecutor in relationto hearsay as it applied within thisjurisdiction.

3.2 The cases referred to above, with theexception of Pacific Investments Limited,were all criminal cases in which the Courtappeared to accept and apply the hearsayrule as it is understood in the context of thelaw in England and Wales, and there can belittle doubt that the Jersey Courts currentlylook to that jurisdiction for guidance. Theposition in civil cases is not at all clear andneeds to be clarified. Comments from localpractitioners would indicate that frequentlyhearsay evidence is submitted and acceptedand not challenged by the opposing side,there being no reported cases where theCourt has been called to rule on the matter.

4. The Position Under English Law (Contents List)

4.1 Although there had been some minorreforms concerned with such matters asparticular forms of proof of documents andstatutory certificates of declarations ofcertain facts, such as registers of births,

deaths and marriages and entries inbankers' books the first statutoryintervention under English Law was theEvidence Act 1938. It reformed the hearsayrule by providing new exceptions for specificcategories of documents. Although it dealtwith wider categories of documents andrecords it applied only to documentation.Oral hearsay was left to the common lawrules.

4.2 The 1968 Reforms (Contents List)

4.2.1 This was followed by the CivilEvidence Act 1968. Section 2 of this Act,which governed the admissibility of hearsayevidence in most civil proceedings made allfirst-hand hearsay and much second-handhearsay admissible provided certainconditions were satisfied.

4.2.2. Section 1(1) provided:-

"In any civil proceedings a statement otherthan one made by a person while giving oralevidence shall be admissible as evidence ofany fact stated therein to the extent that itis also admissible by virtue of any provisionof this part of this Act or by virtue of anyother statutory provision or by agreement ofthe parties, but not otherwise."

4.2.3 Section 2(1) stated:-

"In any civil proceedings a statement made,whether orally or in a document orotherwise, by any person, whether called asa witness in those proceedings or not, shall,subject to this section and to the rules ofcourt, be admissible as evidence of any factstated therein of which direct oral evidenceby him would be admissible."

The words 'statement' and 'document' inthis section have the same definitions as inthe Criminal Justice Act 1988;

4.2.4 Section 10 provided:-

'Adocument' includes, in addition to adocument in writing -

(b) any photograph;

(d) any film, negative,tape or other device inwhich one or morevisual images areembodied so as to becapable (as aforesaid) ofbeing reproducedtherefrom;

"film" includesmicrofilm;

"statement" includes anyrepresentation of fact,whether made in wordsor otherwise."

4.2.5. Whether the court would treatdocuments stored on computer by imagingas a document in writing, or analogous to aphotograph is a moot point, the term insubsection (d) ".....other device in whichone or more visual images are embodied"appearing wide enough to cover thispossibility.

4.2.6. The admissibility of statementsproduced by computer is laid down inSection 5, which also contains the definitionof computer;

Admissibility;

"Section 5(1) In any civil proceedings astatement contained in a documentproduced by a computer shall, subject to therules of court, be admissible as evidence ofany fact stated therein of which directevidence would be admissible, if it is shownthat the conditions mentioned in subsection(2) below are satisfied in relation to thestatement and computer in question.

(2) The said conditions are -

(a) that the documentcontaining the statementwas produced by thecomputer during aperiod over which thecomputer was used

regularly to store andprocess information forthe purposes of anyactivities regularlycarried on over thatperiod, whether forprofit or not, by anybody, whether corporateor not, or by anyindividual;

that over that periodthere was regularlysupplied to the computerin the ordinary course ofthose activitiesinformation of the kindcontained in thestatement or of the kindfrom which theinformation so containedis derived;

(c) that throughout thematerial part of thatperiod the computer wasoperating properly or, ifnot, that any respect inwhich it was notoperating properly orwas out of operationduring that part of thatperiod was not such asto affect the productionof the document or theaccuracy of its contents;and

(d) that the informationcontained in thestatement reproduces oris derived frominformation supplied tothe computer in theordinary course of thoseactivities."

4.2.7. The effect of this section was to admithearsay statements, including second-handhearsay statements, contained in computer-produced documents.

4.2.8. Definition;

"Section 5(6) Subject to subsection (3)above, in this part of the Act 'computer'means any device for storing and processinginformation, and any reference toinformation being derived from otherinformation is a reference to its beingderived therefrom by calculation,comparison or any other process."

4.2.9. It is noteworthy that there was directreference to the storing of information oncomputer in this section, which would beprecisely the situation envisaged by acompany 'imaging' documents on tocomputer.

4.2.10 The effect of Section 5(3) was that'computer' also means any combination ofcomputers, or different computers operatingin succession over the period in question.This appears to have removed any difficultywhich may have been encountered by thetransfer of the 'imaged' document data fromone computer to another - the number oftransfers appears immaterial to theadmissibility of the information.

4.2.11 Furthermore, Section 5(5) statedthat for the purposes of that part of the Act:

"(a) information shall betaken to be supplied to acomputer if it is suppliedthereto in anyappropriate form andwhether it is so supplieddirectly or (with orwithout humanintervention) by meansof any appropriateequipment; [underlininginserted]

(b) where, in the courseof activities carried onby any individual orbody, information issupplied with a view toits being stored orprocessed for the

purposes of thoseactivities, by a computeroperated otherwise thanin the course of thoseactivities, thatinformation, if dulysupplied to thatcomputer, shall be takento have been supplied toit in the course of thoseactivities; [underlininginserted]

(c) a document shall betaken to have beenproduced by a computerwhether it was producedby it directly or (with orwithout humanintervention) by meansof any appropriateequipment."

4.2.12 Section 5(5)(a) appears to haveallowed for the supply of information bydocument imaging, while subsection (b)removed the difficulties which may havebeen encountered regarding theadmissibility of documents supplied to acompany and stored on computer by themby imaging, rather than those produced bythem internally, and stored on computercontemporaneously.

4.2.13 It should be noted that theadmissibility of any computer produceddocument is reliant on proof that thecomputer in question was operating properlyat the time it was dealing with the documentconcerned. These criteria were set our inSection 5(2);

The said conditions are-

"(a) that the documentcontaining the statementwas produced by thecomputer during aperiod over which thecomputer was usedregularly to store orprocess information for

the purposes of anyactivities regularlycarried on over thatperiod..............".

"(c) that throughout thematerial part of thatperiod the computer wasoperating properly or, ifnot, that any respect inwhich it was notoperating properly orwas out of operationduring that part of thatperiod was not such asto affect the productionof the document or theaccuracy of itscontents;"

4.2.14 Section 8 provided for rules of courtto be made, compliance with which was tobe regarded as a precondition toadmissibility of hearsay evidence. The majorsafeguard created by the rules, which weremade and which were complex, was therequirement to give notice of the intentionto adduce hearsay evidence.

4.3 The English Law CommissionsRecommendations in 1993 (ContentsList)

4.3.1 The English Law Commission wasrequested in 1989 by the Lord Chancellor toconsider the Law of England and Walesrelating to admissibility of hearsay evidencein civil proceedings and to advise 'inter alia'whether the rule against hearsay (asmodified by the Civil Evidence Acts) shouldbe retained in whole or in part. The LawCommission published a Consultation Paperprovisionally recommending that the ruleexcluding hearsay evidence should beabolished and the views of the persons andbodies whom they consulted supported theirown provisional conclusions. The generalview was that the current statutory regimewas unwieldy, that the law wasunnecessarily difficult to understand and insome instances outmoded and that the rulesgoverning its practical application were too

complicated.

4.3.2. The English Law Commission foundthat recent developments in the law andpractice of civil litigation point to a newapproach where the main emphasis is uponensuring that, so far as possible and subjectto considerations of reliability and weight, allrelevant evidence is capable of beingadduced. Another part of this new approachis that litigation is conducted in a more openclimate, with more emphasis uponidentifying and refining the issues inadvance which in turn gives parties lessopportunity to take advantage of technicalpoints at the trial stage.

4.3.3 The English Law Commission wasparticularly impressed by comments from anumber of judges and practitioners whowere concerned that intelligent and rationalwitnesses and litigants were understandablyconfused by and dissatisfied with theexistence of rules of evidence whichsometimes operated to prevent them fromgiving evidence of matters which theyrightly perceived as relevant and cogent.

4.3.4 Copies of the provisional conclusionsof the English Law Commission whichformed part of their Consultation Paper No.117 and the Summary of Recommendationsforming part of their Report presented toParliament by the Lord High Chancellor areattached to the present Consultation Paper.

4.3.5 The English Law Commission's reportand recommendations were presented toParliament in September 1993 and as aresult the Civil Evidence Act 1995 wasenacted on the 8th November 1995, andcame into force on 31st January 1997.

4.4 Civil Evidence Act 1995 (Contents List)

4.4.1 This Act repealed Part 1 Sections 1 to10 of Civil Evidence Act 1968 which relatedto hearsay evidence. The main provisions inthe 1995 Act are the following:-

Section 1

(1) In Civil proceedingsevidence shall not beexcluded on the groundthat it is hearsay.

(2) In this Act -

(a)'hearsay'meansastatementmadeotherwisethanby apersonwhilegivingoralevidenceintheproceedingsinwhichit istenderedasevidenceofthemattersstated;and

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

4.4.2 Sections 2 to 5 go on to impose anumber of safeguards in regard to theadmissibility of hearsay evidence, such asrequiring the party proposing to adduce thehearsay evidence to give notice to the otherparties to the proceedings (Section 2),giving the other parties to the proceedingspower to call the person who made thehearsay statement and cross examine him ifnot called by the party seeking to adducehis evidence (Section 3), setting out fivefactors to be taken into account by theCourt in assessing the weight to be given tothe hearsay evidence adduced (Section 4),

and providing that hearsay evidence shallnot be admitted if at the time it was madethe maker was not competent (Section 5).

4.4.3 Of direct relevance to the question ofthe admissibility of computergenerated/stored records set out above, isSection 8:

8.(1) where a statementcontained in a documentis admissible asevidence in civilproceedings, it may beproved -

(a) by the production ofthat document, or

(b) whether or not thedocument is still inexistence, by the

productionof acopyofthatdocumentor ofthematerialpartof it,authenticatedinsuchmannerasthecourtmayapprove.

8.(2) It is immaterial forthis purpose how manyremoves there arebetween a copy and theoriginal.

4.4.4 In regard to the above, Section 13 contains the followingdefinitions:

"'document' means anything in whichinformation of any description is recorded,and 'copy' in relation to a document, meansanything on to which

information recorded in the document hasbeen copied, by whatever means andwhether directly or indirectly;

'statement' means any representation offact or opinion, however made."

4.4.5 Consequently, the Civil Evidence Act1995 removes the problems associated withthe admissibility of documents 'scanned'into a computer and then reproduced, givingthe Court discretion to determine theappropriate test for authentication of thedocument in the circumstances of eachcase.

4.4.6 The Civil Evidence Act 1995 goes on tostate -

9.(1) A document whichis shown to form part ofthe records of abusiness or publicauthority may bereceived in evidence incivil proceedings withoutfurther proof.

9.(2) a document shallbe taken to form part ofthe records of abusiness or publicauthority if there isproduced to the court acertificate to that

effect signed by anofficer of the business orauthority to which therecords belong.

For this purpose -

(a) adocumentpurportingto be

acertificatesignedbyanofficerof abusinessorpublicauthorityshallbedeemedtohavebeendulygivenbyanofficerandsignedbyhim;and

(b) acertificateshallbetreatedassignedby apersonif itpurportstobearafacsimileofhissignature.

9.(3) The absence of anentry in the records of abusiness or publicauthority may be proved

in civil proceedings byaffidavit of an officer ofthe business or authorityto which the recordsbelong.

9.(4) In this section -

"records" means recordsin whatever form;

"business" includes anyactivity regularly carriedout over a period oftime, whether for profitor not, by any body(whether corporate ofnot) or by an individual;

"officer" includes anyperson occupying aresponsible position inrelation to the relevantactivities of the businessor public authority or inrelation to its records;and

"public authority"includes any public orstatutory undertaking,any governmentdepartment and anyperson holding officeunder Her Majesty.

9.(5) The court may,having regard to thecircumstances of thecase, direct that all orany of the aboveprovisions of this sectiondo not apply in relationto a particular documentor records, ordescription ofdocuments or records.

4.4.7 The effect of Section 9 is that recordsmade in the course of business areadmissible as evidence at the discretion ofthe Court. This is of particular significance

as automatic computer record keepingsystems are increasingly used.

4.4.8 Matters to be taken into considerationby the court in estimating the weight to begiven to hearsay evidence are set out inSection 4:-

(1) In estimating theweight (if any) to begiven to hearsayevidence in

civil proceedings thecourt shall have regardto any circumstancesfrom which anyinference can reasonablybe drawn as to thereliability or otherwise ofthe evidence.

(2) Regard may be had,in particular, to thefollowing:-

(a) whether it wouldhave been reasonableand practicable for theparty by whom theevidence was adducedto have produced themaker of the originalstatement as a witness;

(b) whether the originalstatement was madecontemporaneously withthe

occurrence or existenceof the matters stated;

(c) whether theevidence involvesmultiple hearsay;

(d) whether any personinvolved had any motiveto conceal ormisrepresent matters;

(e) whether the original

statement was an editedaccount, or was made in

collaboration withanother or for aparticular purpose;

(f) whether thecircumstances in whichthe evidence is adducedas hearsay are such asto suggest an attempt toprevent properevaluation of its weight.

5. Conclusions and Recommendations (Contents List)

5.1 There are a number of choices:-

1. make nochanges.

2. introduce statutoryreform along the lines ofthe UKs Civil EvidenceAct 1968.

3. introduce statutoryreform along the lines ofthe UKs Civil EvidenceAct 1995.

introduce statutoryreforms which do notabolish the hearsay rulebut which neverthelesspermit certain types ofevidence, andparticularly computergenerated evidence, tobe admissible as anexception to the hearsayrule and which followrules partly based on the1968 Act as modernisedto meet current trends.

5.2. As the Royal Court has tended to lookto English common law decisions on thequestion of evidence, and hearsay inparticular, there may be advantages inrunning alongside the new English rules.

There may be a number of reasons for doingso:

(1) the convenience forevidence collection fromEngland as the closesttrading country andassistance that may begained fromprofessionals there;

(2) having the ability toconsider judicialdecisions based uponsimilar statutorywording;

(3) to facilitate a similaroutcome to a casewhether or not it hascross border aspects;

(4) avoiding theunpredictable byfollowing the fourthchoice stated above;

(5) speed of drafting and therefore implementation of a new law.

5.3 The provisional view of the Commissionis that the hearsay rule in civil proceedingsshould be abolished by enacting legislationalong the lines of the U.K. Civil EvidenceAct,1995.

6. Questions for Consultation (Contents List)

6.1 The purpose of this Consultation Paperis to put the issues in the public domain forcomment and suggestions. Before makingour final report, therefore, we inviteresponses from interested parties bothgenerally upon the contents of this paperand, more particularly, upon the followingquestions:

A. Should the commonlaw position be amendedto abolish the hearsayrule in civil proceedings?

B. If so, should theprovisions of the 1995

UK Act be adopted and,if not, what should beadopted?

C. Alternatively shouldthe provisions of the1968 UK Act beadopted?

D. Is there any other approach which would be preferable?

Should theCommissioners look atthe hearsay rule incriminal proceedingsgenerally?

Should theCommissioners look atthe hearsay rule only incertain categories ofcriminal proceedings: forinstance financial fraudor wrongdoings with aninternational elementwhich might affect thestanding of the Islandabroad?

Are correspondentsaware of any particulardifficulties which havearisen either in theory orin practice as a result ofthe 1968 or 1995 UKActs?

Have correspondents, inthe capacity of litigants,lawyers, witnesses orexperts experienceddifficulties or perhapsbenefited as a result ofthe state of the currentUK law in this area?

Can correspondentsidentify any foreseeableeffects, whether good oradverse, from followingany of the choicesavailable to Jersey law

identified in this paper?

6.2 Responses to this Consultation Paper should be made in writing to:

The Jersey Law Commission, The BestEvidence Rule in Civil Proceedings,

PO Box 87, St Helier, Jersey, JE4 8PX. Thosewho respond may be invited to meet theCommissioners to discuss their comments,and possibly also to participate in asymposium which the Commissioners maydecide to organise prior to compiling theirfinal report and recommendations.

APPENDIX A - Provisional Conclusions of the English Law Commission

APPENDIX B - Summary of Recommendations of the English LawCommission

(Contents List at Top)

Responses to this Consultation Paper should be made in writing to:

The Jersey Law CommissionPO Box 87St HelierJersey

JE4 8PX

Fax no: 01534 609333

Those who respond may be invited to meet the Commissioners to discuss theircomments, and possibly also to participate in a symposium which theCommissioners may decide to organise prior to compiling their final report andrecommendations.

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