Abolition%20of%20hearsay%20rule%20in%20civil%20proceedings

BYE BYE BIRDIE! ABOLITION OF THE HEARSAY RULE IN CIVIL PROCEEDINGS

1. In 1867, Benjamin Disraeli, a former Prime Minister of the United Kingdom, said something which holds as much potency now, as it did then. It was this: “Change is inevitable. In a progressive country change is constant.”

2. This is the lens through which the current hearsay rule within our jurisdiction ought to be examined and determined whether the time has come for a change at least in respect of civil proceedings.

3. Since the late 1980s and certainly in even more recent years, there has been a wave of movement towards to the abolition of the hearsay rule civil proceedings in certain common law jurisdictions. These jurisdictions include: England, Scotland, Ireland, South Africa, New Zealand, Australia, Hong Kong and to a lesser extent Canada and the United States of America.

4. This paper seeks to examine the legislative amendments in certain jurisdictions to determine whether we are impelled to make similar changes in light of the current state of the hearsay rule and its exceptions, both at common law and by way of statute.

Indeed special emphasis is given to an analysis of the amendments made in the English Law in this regard.

The Hearsay Rule – The Mother of All Evidence Rules 5. The hearsay rule needs no defence. As legal practitioners, we have been comforted in reminding ourselves why the rule was established. In the case of Lejzor v R [1952] AC 480, Lord Norman of the Judicial Committee of the Privy Council, on an appeal from British Guiana, emphatically stated of hearsay evidence: “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by

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cross examination, and the light which his demeanor would throw on his testimony is lost.”1 6. The Court in English Reporters (London) Ltd. v Eldonwall Ltd. [1973] Ch 415 commented: “Even a transparently honest and careful witness cannot make information reliable if, instead of speaking of what he has seen or heard of himself, he is merely retailing what others have told him.”2

7. There is no doubt the hearsay rule protects certain hallowed principles that are commensurate with the hallmarks of justice, namely protecting the right of a party to cross examine a witness who gives evidence which is adverse to his interests and maintaining a party’s right to a fair trial. These are principles, which though may result in less severe consequences within a civil context, are still important for litigants’ confidence in the overall administration of justice.

8. However, one must question whether there is a balancing act that could be exercised, which all the while protects these sacred principles of our legal system, and also respond to the demands of living in a very civilized and modern society.

Why make changes to the Hearsay Rule?

9. Even the most seasoned and senior legal practitioner will admit that law surrounding hearsay is one of the most complex and often difficult to understand, and is certainly often not easy to implement in practice. As indicated, there is the hearsay rule, its common law exceptions, the statutory exceptions, and then there are the exceptions to the exceptions.

10. One would not be hard pressed to describe the state of the law is being in a flux, where the current legislature sometimes seek to make piecemeal changes in order to address the new and emerging areas in our developing society, including attempts to address the fast paced technological advancements. It is safe to say that the law in this area has not kept in alignment with all the challenges that the 21st century has posited.

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Page 486 of judgment Page 421 of judgment

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11. As early as in the 1960s, it was clear that the application of the hearsay rule produced unfortunate results as was illustrated in the well known House of Lords case of Myers v DPP [1965] A.C. 1001 (albeit that this was a criminal case). An abstract of the case reminds us of the relevant facts and holding.

12. The Appellant was convicted together with another accused on counts of conspiracy, and he was convicted on several counts of receiving stolen property. The case by the prosecution was that he would buy wrecked motor cars with their log books, and then would disguise stolen cars, which were as nearly identical as possible to the wrecked cars, so that they conformed with the details of the log books of the wrecked cars. In so doing, he removed from the wrecked cars the small plates which contained the engine and chassis numbers and transferred them to the stolen cars. To prove their case the prosecution called, among their witnesses, persons who had owned the stolen cars and who were able to identify them by peculiar marks and also insurance assessors who had, after accidents, examined some of the wrecked cars and who testified that such cars were not those that appellant had sold.

13. The Appellant’s defence was that he had repaired the wrecked cars and sold them. At the trial the learned judge permitted the prosecution to adduce evidence of a witness in charge of the records that were kept of every car built at a manufacturer’s works. At the works when each car was being completed a workman filled in a card which contained the engine and chassis number of the car and also the cylinder block number. This block was indelibly stamped on the engine and could not be removed. The cards were microfilmed and then destroyed. The relevant microfilms were extracted and the numbers were scheduled for the purpose of the trial. The schedules and films were produced on oath by the witness; these schedules showed that the cylinder block numbers of the cars in question belonged to the stolen cars.

14. The Appellant appealed on the ground that the production of these records was inadmissible as hearsay.

15. It was held, inter alia, that the records of cylinder block numbers were tendered in evidence in order to prove the truth of the facts recorded, viz, that the cylinder block of a particular car when manufactured bore a particular number, and this evidence was 3|P a g e

hearsay evidence which could not be brought within any established exceptions to the rule that hearsay evidence was inadmissible, for the records were not public records and, although they had been made in the course of duty and contemporaneously, it was not shown that the persons who made them had died; therefore the evidence ought not to have been admitted, since its reception would involve an alteration of the existing law, which, despite the technicalities of this branch of the common law, at the present day required the intervention of the legislature, and was not for the court to effect.

16. In commenting on the application of the hearsay rule, Lord Reid in giving the leading judgment made certain observations which we as practitioners must bear in mind: “This is a highly technical point, but the law regarding hearsay evidence is technical, and I would say absurdly technical. So I must consider whether in the existing state of the law that objection to the admissibility of this evidence must prevail. It is difficult to make any general statement about the law of hearsay evidence which is entirely accurate, but I think that the books show that in the seventeenth century the law was fluid and uncertain but that early in the eighteenth century it had become the general rule that hearsay evidence was not admissible. Many reasons for the rule have been put forward, but we do not know which of them directly influenced the judges who established the rule. The rule has never been absolute. By the nineteenth century many exceptions had become well established, but again in most cases we do not know how or when the exception came to be recognised. It does seem, however, that in many cases there was no justification either in principle or logic for carrying the exception just so far and no farther. One might hazard a surmise that when the rule proved highly inconvenient in a particular kind of case it was relaxed just sufficiently far to meet that case, and without regard to any question of principle. But this kind of judicial legislation became less and less acceptable and well over a century ago the patchwork which then existed seems to have become stereotyped.

The natural result has been the growth of more and more fine distinctions so that it now takes even so concise an author as Professor Cross* over 100 closely packed pages to explain the law of hearsay evidence.3 (Emphasis added) 17. The upshot of His Lordship’s comments is that the hearsay rule is not, and was never, infallible. Indeed there has been a gradual erosion of the hearsay rule as is manifest in 3

Pages 1019-1020 of judgment

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the existence of its many exceptions. Furthermore, the hearsay rule finds its vestiges in an adversarial system which was weary of extra judicial assertions that could not be tested in cross examination. Many legal practitioners are now of the view that given that this adversarial system is on the decline and that the element of ambush and surprise is virtually no more, then the hearsay rule ought to be revised. This decline of the adversarial system is patent in our very own Civil Procedure Rules.

18. Prior to the changes made in England, there was a comprehensive review of the hearsay rule relative to civil proceedings by the Law Commission. The Commission’s findings were published its Report No. 16 dated September 1993 entitled “The Hearsay Rule in Civil Proceedings”. As a preface to its findings, the Commission made the following observations: “…recent developments in the law and practice of civil litigation point to a new approach, where the main emphasis is upon ensuring that, so far as possible and subject to considerations of reliability and weight, all relevant evidence is capable of being adduced. Another part of this new approach is that litigation is conducted in a more open climate, with more emphasis upon identifying and refining the issues in advance, which in turn gives parties less opportunity to take tactical advantage of technical points at the trial stage.”4 19. These views were by no means new and were in line with those expressed by Balcombe L.J. in Ventouris v Mountain (No. 2) [1992] 1 WLR 887, where His Lordship stated: “The modern tendency in civil proceedings is to admit all relevant evidence and the judge should be entrusted to give only proper weight to evidence which is not the best evidence.”5

20. In reviewing the current state of their law with the many exceptions to the hearsay rule, the Law Commission continued: “These developments reflect a determination to move towards a climate of litigation where there is greater openness between parties, and towards what has been called ‘cards on the table’ approach, where time and cost are saved by closer attention to pretrial preparation and earlier identification of material issues.

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Para. 1.5 of Report Page 899 of judgment

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Their justification has been said to reside in the adversarial nature of our system of civil justice‌In our opinion they can also be seen in the context of a growing belief that fairness between the parties and the full ventilation of all the relevant issues are better achieved by these means rather than by an insistence on the technical rules of evidence.�6

21. Of note is that when the Law Commission was empanelled, hearsay in civil proceedings in England was governed under the regime of the Civil Evidence Act 1968, a piece of legislation which bore some similarity to the provisions of our Evidence Act and its amendments. In analyzing the current state of their law, the Commission found many reasons that the abolition of the hearsay rule should at least be considered. It is safe to say that these criticisms of the law are even more apt to our legislative status, which has consistently lagged behind modern trends.

22. In this regard, the Commission found that: a. Intelligent and rational witnesses and litigants were confused and dissatisfied with the existence of rules of evidence which sometimes operated to prevent them from giving evidence on matters which they perceive as being relevant or potent. Where the rules of evidence are difficult for laymen to understand, public confidence in the judicial system is undermined;7 b. Statutory reform has been piecemeal in its approach;8 c. The notice requirements were overly elaborate and placed unrealistic burdens on parties.9 Within the Jamaican context, for example, one only has to recall that in order to rely on hearsay evidence, a statutory reason as set out in section 31 E of the Evidence Amendment Act 2015 has to be proven. If a party is relying on the fact that a witness cannot be found after all reasonable steps have been taken to find him (section 31E (4) (d) of the said Act), then that party must prove that he has made checks at the places with which the witness has contemporary connection and that contact has been made with relatives and friends with whom the witness is likely to be in touch

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Para. 2.34 of Report Para. 1.6 of Report 8 Para. 2.5 of Report 9 Part III of Report 7

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(see Court of Appeal case of Brian Rankin & Anor v Regina, unreported judgment, decided on July 28, 2006)10 – an onerous requirement, no doubt. d. The rules and notice provisions has fallen into disuse and that where the rules were used at all, it was a last resort in extreme cases. Within our jurisdiction, civil practitioners often side step the rigidity of the hearsay rule by simply agreeing hearsay documents to go into evidence at trial. Such a practice has only received legislative recognition recently in the Evidence Amendment Act 2015 (see section 3 (c) thereof).

23. This Law Commission Report paved the way for the Civil Evidence Act 1995, the provisions of which will be examined in greater detail below.

24. There may be an enquiry as to the reason that there should be a difference in the treatment of hearsay evidence in civil proceedings, as opposed to hearsay statements in criminal proceedings. The Irish Law Reform Commission in its 2010 Consultation Paper – “Hearsay in Civil and Criminal Cases” made a critical observation: “During the second half of the 20th century, a dominant view, though not a consensus, emerged that civil proceedings should be differentiated from criminal proceedings in two important respects, with important implications for the hearsay rule. Unlike an accused, parties in a civil case do not require special protection from a mistaken verdict and, unlike a suspect, a potential party to civil proceedings does not need protection from illegal, unfair or improper treatment in the manner in which evidence is obtained. On both grounds, it was thought that the hearsay rule should not be applied in civil proceedings with the same severity as in criminal proceedings; and, as a result the hearsay rule has moved towards a largely inclusionary approach.”11

25. In further examining the rationale for the abolition of the hearsay rule in civil proceedings, the Irish Law Reform Commission,12 also noted: “There are two fundamental reasons for abolishing the hearsay rule in civil cases: that all germane evidence would be admissible at trial and the rules of evidence

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Para 18A of judgment Page 109 of Report 12 supra 11

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would become straightforward in practice for lawyers, the courts and litigants alike. That would have the further effect of that the hearsay rule would cease to afford a ground of appeal as of right. This mode of reform would also reflect existing practice where parties often waive their right to oppose hearsay. It removes the drawback of affording a tactical ground to object to the evidence in the course of trial.�13

26. The inclusionary approach as adopted by the English Law Commission describes hearsay evidence being admissible in civil trials. Concerns for this approach have been diminished and such an approach further justified on the basis that there is the absence of juries in civil trials, as most civil trials are by a judge alone, who is able to carefully distil the evidence and determine its reliability and any weight that is to be given to it (if any). In addition, intrinsic in the civil procedure which underpin civil trials, is the advance disclosure and inspection of documents, along with the use of witness statements. This procedure permits parties to know in advance of trial the evidence in chief of each party and the contents of any documents upon which that party is relying. In this regard, any potential for ambush and other potential prejudice from hearsay evidence is greatly minimized.

27. The Law Reform Commission of Hong King in its Report on Hearsay Rule in Civil Proceedings, July 1996, also further highlighted a substantial list of advantages of abolishing the hearsay rule:14 a) The application of the hearsay rule can result in the exclusion of evidence of statements made shortly after the event. These statements are more reliable as witnesses memories of events fade as time passes. b) The need to call direct evidence instead of relying on hearsay evidence increases the cost of litigation and causes great inconvenience to the parties to litigation and the maker of the statement. c) If the hearsay evidence is of sufficient probative value, then to exclude it, on the ground of hearsay, is unfair to the party who wishes to adduce it. In fact, hearsay evidence may sometimes be the best evidence of a fact asserted.

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Para. 4.96 of Report Para. 4.5 of Report

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d) As there is more emphasis on pretrial case management, the role of the exclusionary rule governing the quality of evidence tendered before the court is diminished. e) Abolition of the hearsay rule would not result in the court being flooded with evidence of low probative value as direct evidence will always be called in preference to hearsay evidence and the court will treat the evidence as being unreliable and adversely comment on same, where there was direct evidence available. This approach is more in line with private life and the business world. f)

Abolition of the hearsay rule would avoid the need to categorize new exceptions by way of statute since the common law exceptions are now closed as the House of Lords held in Myers.15

g) If the rule were abolished the role of the judge would be limited to excluding irrelevant evidence and evidence of low probative value. Abolition therefore contributes to greater certainty and predictability in the trial process.

28. These advantages and others, warrant careful and distilled deliberations, to determine whether the hearsay rule is to be abolished in civil proceedings.

A Glimpse at the Civil Evidence Act 1995 (England) 29. By virtue of the Civil Evidence Act 1995 (“the Act�), hearsay in civil proceedings has been abolished, the English legislature having implemented the recommendations of the Law Commission.

30. The Law Commission chose to abolish the exclusionary rule, citing that this was a less complicated approach, which simplified the rules of evidence for practitioners, judges and litigants alike. They also indicated that this method permitted parties to concentrate on the substantial issues, as opposed to technical evidential points.16 31. Section 1 of the Act provides:

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Supra Para. 3.42 of Report

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“1 Admissibility of hearsay evidence (1)

In civil proceedings evidence shall not be excluded on the ground that it is

hearsay.

(2)

In this Act—

(a)

“hearsay” means a statement made otherwise than by a person while

giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and (b)

references to hearsay include hearsay of whatever degree.”

32. It is patent from a cursory reading of this section that the hearsay rule has been abrogated. Additionally, the section renders hearsay statements admissible of both first hand, as well as multiple hearsay.

33. The abolition is not however absolute and is subject to certain statutory safeguards as contained in sections 2-6 of the Act. 34. Section 2 of the Act sets out one of the safeguards, popularly called “the notice requirement”: “2 Notice of proposal to adduce hearsay evidence (1)

A party proposing to adduce hearsay evidence in civil proceedings shall,

subject to the following provisions of this section, give to the other party or parties to the proceedings— (a)

such notice (if any) of that fact, and

(b)

on request, such particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay. …

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(4)

A failure to comply with subsection (1), or with rules under subsection

(2)(b), does not affect the admissibility of the evidence but may be taken into account by the court— (a)

in considering the exercise of its powers with respect to the course of

proceedings and costs, and (b)

as a matter adversely affecting the weight to be given to the evidence in

accordance with section 4.”

35. These notice provisions are remarkably much simpler than what currently exists in our jurisdiction and indeed deliberately does not set out any particular circumstance that must be satisfied in order to rely on the hearsay evidence or any particular reason that must be complied with that the persons could not be called to give oral evidence. Of further note is that it is only upon request that the party relying on the hearsay evidence has to provide to the opposing party particulars of the evidence.

36. While the notice provisions appear to be mandatory, the failure to serve the notice, doesn’t not affect admissibility of the evidence to be adduced. It therefore means that a judge could still admit the hearsay evidence although a party has failed to serve a hearsay notice. The failure to serve the hearsay notice may however adversely affect the weight to be given to the evidence (that is the Court may draw adverse inferences) or the Court may impose costs orders or exercise some other case management powers.

In the UK Court of Appeal case of Sunley v Gowland [2003] EWCA Civ 240, evidence of a surveyor’s and valuer’s report which constituted hearsay evidence was admitted into evidence despite defendant’s refusal to comply with the notice provisions, citing the provisions of the Act as its support for doing so.

37. The temptation to, for tactical reasons, not serve a hearsay notice to prevent cross examination of a weak or unreliable witness by an opposing party, is circumvented by section 3 of the Act. This section provides that the other party may elect to call and cross-examine the maker of the hearsay document, with the leave of the Court. This section is not without difficulty, as highlighted by Professor Barry Cowen in his article entitled “The Civil Evidence Act 1995: a new regime” J.P.I.L. 1997, 170-176. By way of practicality, he questions, when the maker of a statement has been cross examined, is it 11 | P a g e

then possible to re-examine the witness? In addition, if an application is made to call and cross examine the maker of the document, is it possible to withdraw the notice and call the witness to give evidence in chief?

38. It is also observed that in order for the other party to call the maker of the hearsay statement, the leave of the Court must first be obtained. The statute is silent as to the considerations that a judge is to take into account in exercising this judicial discretion. It is assumed that there would be much argument made by lawyers as to the probative effect and prejudicial value of the proposed hearsay statement.

39. Of comfort, is that even with the satisfaction of section 2 and its effect also being the abolition of the best evidence rule, the court is not obliged and bound to give effect to a hearsay statement.

40. With regards to multiple hearsay, it is recognized that there could be obvious dangers in the reliability of this evidence, however, the section gives the trial judge the discretion to admit it, as well as any weight which will be attached to it.

41. A further safeguard is also comprised in section 4 (2) of the Act, which prescribes a list of factors to be taken into account by the court in determining the weight to be attached to any hearsay evidence, as well as determining the reliability of the evidence. These are: (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b)

whether the original statement was made contemporaneously with the

occurrence or existence of the matters stated; (c) (d)

whether the evidence involves multiple hearsay; whether any person involved had any motive to conceal or misrepresent

matters;

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(e)

whether the original statement was an edited account, or was made in

collaboration with another or for a particular purpose; and (f)

whether the circumstances in which the evidence is adduced as hearsay are

such as to suggest an attempt to prevent proper evaluation of its weight.

42. By the above considerations, the court is given wide latitude and some guidance regarding the determination of the weight to be attached to hearsay evidence. It is therefore obvious that not all hearsay evidence will be given weight, and the exact nature of the weight to be given is dependent on the Court’s examination of all the factors listed above. The trial judge is therefore able to examine the probative value of the evidence to the facts in issue. The judge is steered towards looking at the function of the evidence, and not focus on the form of the evidence. The Court will be minded to ask itself whether the evidence is of any value to the facts in issue.

43. Further statutory protections, which should allay some innate fears of the legal practitioner, as enshrined in the Act are: i.

Hearsay evidence is not admissible if the maker of the statement is not competent to give direct evidence e.g., if the maker of the hearsay statement is mentally incapacitated (section 5 (1));

ii.

Evidence as to the hearsay maker’s credibility or of a previously inconsistent statement is admissible (section 5 (2));

iii.

Evidence of a previous statement of a witness may be adduced with the leave of the court or for the purpose of rebutting a suggestion of recent fabrication (section 6 (2)).

44. As regarding the admissibility of documents, the Act provides much ease in comparison to what currently exists within our own jurisdiction, in that: a) A document is admissible as evidence by production of the actual document or by way of the production of a copy of that document. This is so whether or not the original of that document exists and regardless of how many removes there are between the copy and the original (section 8). These documents include documents or information generated by a computer. Accordingly, the complicated procedure employed to admit computer generated evidence has

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been done away with. This greatly simplifies in particular commercial litigation which increasingly relies on computer generated documents. b) Documents of a business or of a public authority are admissible without further proof, once there is a duly executed certificate of the officer of the company or the public authority (section 9). There are no special words of authenticity prescribed by the Act to be included in the certificate by the officer and a faxed signature of the officer is also accepted. However, the Court is at liberty to direct that these provisions do not apply in relation to any particular document or record.

45. Nothing in the Act affects the exclusion of evidence on grounds other than it is hearsay (section 14 (1)). Accordingly evidence can still be excluded on other grounds such as it is irrelevant, scandalous or prolix, an opinion given by someone who is not an expert, or it is evidence relates to a collateral issue. Evidence can also be further excluded pursuant to enactment, rule of law or failure to comply with rules of court.

46. In addition, the Act specifically preserves the common law exceptions of hearsay relative to published works of matters of a public nature, public documents and records, character evidence and evidence of reputation or family tradition.

47. The learned writers of Halbury’s Laws of England made the following important observation: “Nothing in the Civil Evidence Act 1995 affects any rules of law as to the circumstances in which, where a person called as a witness in civil proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in the proceedings, and nothing in the provisions set above is to be construed as preventing a statement of any description referred to above from being admissible as evidence of the matters stated.�17 48. The Act specifically provide for the rules of court to be drafted to implement its provisions (section 12 (1)), which is obviously critical for the smooth transition, implementation and application of the its provisions.

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Volume 12 (2015) at paragraph 861

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49. It is submitted that while the provisions of the Act are not without criticism, there are significant attempts made to address the everyday issues which would arise in practice by virtue of the admissibility of the hearsay rule. In the event that we choose to examine whether the rule is to be abolished, this is a wise and considered approach to take.

50. Additionally, if we are to engage in such a process, then detailed consultation with members of the bar is critical. These consultations would ensure that any concerns which may be raised are addressed in the legislation being contemplated, and that any eventual legislation contains adequate safeguards against potential abuse which could result from the abolition of the hearsay rule, thereby preserving the hallowed principle of a party’s right to a fair trial.

Other Options to Reform the Hearsay Rule 51. The Irish Law Reform Commission in its Report,18 on an examination of the trends across common law jurisdictions noted that rather than the inclusionary approach discussed above, the other two reformative options were to: a) Maintain the current state of the hearsay rule and clarify same by legislation, in that the common law exceptions could be codified into statute. In our view, this would not adequately deal with the issues regarding the inadequacies and complexities of the hearsay rule. The Commission itself also recognized that this and also indicated that this approach was not in keeping with the current common law trend. b) Grant the Courts a very wide discretion to admit hearsay evidence. Under this approach, judges would be permitted to admit hearsay evidence after considering certain conditions of general character of the evidence. In this regard, the exclusionary rule would be maintained and the Court would be authorized to admit hearsay evidence once the interest of justice demands and the court is satisfied as to reliability, probity and fairness of the evidence.

This is the model utilized in Australia and Canada. The Commission however

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Pages 140-142 of Report

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criticized this approach, citing that there would be uncertainty in how the rule was to be applied in the absences of any statutory guidance.

52. The Commission rather favoured the English model, namely the admission of hearsay evidence in civil proceedings subject to certain safeguards. This model has also been adopted by Scotland, Hong Kong and New Zealand.

53. In considering whether the hearsay rule is to be abolished, the manner in which it is to be done, including the reform model which best fits our jurisdiction and our culture (both legal and social), must also be contemplated and settled in order for effective legislation to be enacted.

Conclusion 54. A judge, in becoming increasingly irritated by technical objections being taken by Counsel for the Defendant, stated “Mr. Finknottle, am I to hear the truth in this case or not?!” Counsel for the Defendant: “No, my Lord, you are to hear the evidence!”19

55. It remains to be seen whether there will be any significant reform of the hearsay rule in civil proceedings with our jurisdiction. In other jurisdictions, fears have been expressed that the abolition of the hearsay rule, coupled with the court’s discretion to reduce oral arguments and the time allotted for cross examination, along with the encouragement of the use of skeleton arguments as well as witness statements standing as evidence in chief, will result in an “assault” on the principle of orality and the conduct of modern trials being changed beyond recognition.20 56. The question is whether we will be guided by our well known (yet outdated) practices or will we venture into the unknown and take the bold step in civil proceedings to abolish the hearsay rule?

57. It is time for us to think on these things.

19 20

Taken from The Rule Against Hearsay by Derek O’Brien (1996) 146 NLJ 153 The Rule Against Hearsay by Derek O’Brien (1996) 146 NLJ 153 – page 3

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58. Disclaimer: Up and until the hearsay rule is amended and or abolished, the presenter herein reserves the right to utilize and apply the current hearsay rule to advance her clients’ cases in any matter deemed appropriate.

Dated 19th day of September 2017 Trudy-Ann Dixon Frith Partner DunnCox Attorneys-at-Law 48 Duke Street Kingston

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