6.3 Evidence, Disclosure and Privilege

Relevance, hearsay and admissibility

A court decides cases on admissible evidence of facts in issue. A fact is in issue if it is a necessary part of a cause of action or defence. Relevance means the evidence makes a fact in issue more or less probable. Irrelevant material is not admitted merely because it is dramatic. Even relevant evidence can be excluded or limited by case-management powers (CPR 32.1) where it is disproportionate, repetitive, or unfair to a vulnerable witness (CPR 1.1(2)(a) and 1.6).

Hearsay is a statement made otherwise than by a person while giving oral evidence in the proceedings, which is tendered as evidence of the matter stated. In civil proceedings in England and Wales, hearsay is admissible (Civil Evidence Act 1995 s.1). The old common-law exclusion does not apply. What SQE1 actually tests is the notice and weight regime. CPR 33.2 requires a party who proposes to adduce hearsay to give notice. If the hearsay is contained in a witness statement of someone who is not being called, that statement can itself serve as notice. Failure to give notice does not make the evidence automatically inadmissible (CEA 1995 s.2(4)); it can affect costs and the weight the court gives the statement. Weight factors in CEA 1995 s.4 include whether it was reasonable to call the original speaker, whether the statement was contemporaneous, whether there was multiple hearsay, and whether anyone involved had a motive to conceal or misrepresent.

Worked pattern: a warehouse manager emailed "the pallet was already wet when it arrived" two hours after delivery, then emigrated. The email is hearsay if used to prove the pallet's condition. Serve the email under the Part 33 machinery (often via the witness statement of the person who found it). Expect the defendant to attack weight, not to win an automatic exclusion argument as if this were a Crown Court trial.

Opinion evidence from a lay witness is generally confined to perceived facts ("the car was travelling very fast"). Expert opinion is a statutory and CPR exception, taught below. Illegally obtained evidence is not automatically excluded in civil courts, but the court can refuse to admit it as a matter of justice and may punish the method in costs. Privilege is a separate bar on inspection and use, not a synonym for "we would rather the other side did not see it."

Burden and standard of proof

The legal burden of proving a fact in issue generally lies on the party who asserts it. The claimant proves the elements of the cause of action. The defendant proves a true defence (for example limitation as a shield, contributory negligence, volenti, a pleaded set-off). A bare denial does not reverse the burden. The evidential burden can shift during a trial as evidence is called, but SQE1 items are usually about who must prove the issue as a matter of law.

The standard in civil proceedings is the balance of probabilities: more likely than not. That standard does not morph into the criminal standard because fraud, dishonesty or professional disgrace is alleged. What changes is the quality of evidence the court will expect before it is satisfied (Re H (Minors)). Do not advise a client that "fraud needs proof beyond reasonable doubt in the County Court." Do not advise that a claimant can sit back once a defence is "implausible on paper" — unless you are on a summary-judgment application, paper implausibility is not a substitute for evidence.

Experts (CPR Part 35)

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings (CPR 35.1). Permission is required to call an expert or put in a report (CPR 35.4). The court will identify the field and, where practicable, the individual. Estimates of cost matter: an expert who will consume a third of the sum in issue on a fast-track claim will struggle to get permission.

The expert's duty is to help the court on matters within their expertise. That duty overrides any obligation to the person from whom they received instructions or by whom they are paid (CPR 35.3). A report that reads like a partisan skeleton is a breach of duty, a reason to debar the expert, and a costs risk. Reports are addressed to the court, contain the substance of instructions, set out the range of opinion, and carry a statement of truth (CPR 35.10). Written questions on a report are put once, within 28 days, for clarification only (CPR 35.6), unless the court or the other side agrees otherwise.

A single joint expert (SJE) may be directed where two or more parties wish to submit expert evidence on an issue (CPR 35.7). The court can pick from a list if the parties cannot agree. Instructions are transparent: each relevant party may instruct, and they usually share the fee (CPR 35.8). SJEs are common on intermediate-track quantum issues and on many fast-track valuations. They are not a punishment. If the SJE's report is genuinely incomplete, the first tool is questions, not an ambush second expert.

Discussions between experts (CPR 35.12) are to agree and narrow issues. The court may direct a joint statement of what is agreed and what is not, with reasons. The content of the discussion is not referred to at trial unless the experts agree. Clients do not sit in and "keep the expert on message." That is the opposite of CPR 35.3.

On the intermediate track, oral expert evidence is tightly limited (generally one oral expert per party unless a second is reasonably required and proportionate). On the fast track, oral expert evidence is likely limited to one expert per party per field and two fields (CPR 26.9(6)). Permission for oral evidence is a separate question from permission for a written report.

Witness statements and affidavits

A witness statement is a signed written statement of the evidence the person would be allowed to give orally (CPR 32.4). For trial, statements are served by the date in the directions and usually stand as evidence in chief. The witness is then called for cross-examination (CPR 32.5). If you do not call a served witness and the other side does not put the statement in, you may need permission to rely on it. Statements must be in the witness's own words so far as practicable, in the first person, with a statement of truth. A false statement of truth can found contempt proceedings (CPR 32.14). Practice Direction 32 (and, in the Business and Property Courts, Practice Direction 57AC on trial witness statements) attacks narrative, argument, and document-by-document commentary dressed up as memory.

If a witness cannot or will not give a statement, a party may apply without notice for permission to serve a witness summary instead (CPR 32.9): either a summary of the evidence if known, or the topics on which the party proposes to question the witness.

An affidavit is sworn or affirmed evidence. Use it where a rule, practice direction, enactment or court order requires it, or the court directs (CPR 32.15). Search orders and some enforcement and contempt processes still want sworn evidence. For ordinary interim applications, a witness statement is the default (CPR 25.7). Do not swear an affidavit out of habit; extra formality is not extra persuasion.

The court may take evidence by video link (CPR 32.3). Trial witness statements that stand as evidence in chief are normally open to inspection during the trial (CPR 32.13).

Standard disclosure and the duty to search

Disclosure is stating that a document exists or has existed. Inspection is looking at it (or receiving a copy). A party to whom a document has been disclosed may inspect it unless it is no longer in the disclosing party's control, the disclosing party has a right or duty to withhold inspection (privilege is the usual example), or a permitted proportionality objection applies (CPR 31.3).

Standard disclosure (CPR 31.6) requires a party to disclose only:

• the documents on which they rely; and
• the documents which adversely affect their own case, adversely affect another party's case, or support another party's case.

It is not "every piece of paper in the building." The duty is limited to documents which are or have been in a party's control (CPR 31.8): physical possession, a right to possession, or a right to inspect or take copies. A document includes anything in which information of any description is recorded (CPR 31.4) — so emails, messaging apps, CCTV, and databases, not just letters on headed paper.

When giving standard disclosure the party must make a reasonable search (CPR 31.7). Reasonableness looks at the number of documents, the nature and complexity of the case, the ease and expense of retrieval, and the significance of any document likely to be found. Practice Direction 31A confirms you may limit by date, place or category where that is proportionate. The list is in the usual three-part form (documents the party controls and does not object to inspecting; documents they object to inspecting, with the ground; documents no longer in their control, with what happened to them). A disclosure statement explains the extent of the search and certifies understanding of the duty. A false disclosure statement can be contempt (CPR 31.23). The duty is continuing: if a disclosable document turns up later, notify the other parties immediately (CPR 31.11).

On the fast and intermediate tracks, for claims that do not include personal injury, CPR 28.2 requires the court to choose a disclosure order from a menu: no disclosure; disclose documents relied on and request specific disclosure from the other side; issue-by-issue disclosure; a Peruvian-Guano style train-of-enquiry order; standard disclosure; or any other appropriate order. Personal-injury claims on those tracks still normally receive standard disclosure unless the court otherwise orders. Do not recite "everyone always gives standard disclosure" as if Part 31 were the only text in the book.

Orders, specific disclosure, pre-action and non-party

Specific disclosure or inspection (CPR 31.12) is an order that a party disclose specified documents or classes, carry out a search to a stated extent, and disclose what that search produces — or permit inspection of a document they have tried to withhold as disproportionate. You apply on notice with focused evidence: why the class exists, why it is disclosable, and why a further search is proportionate. A fishing expedition ("all emails that mention the claimant") fails. "The April 2025 board pack on the defective batch, which the disclosure statement never explains" is a proper target.

Disclosure before proceedings start (CPR 31.16), often called pre-action disclosure, is available against a likely respondent where the applicant is also likely to be a party, the documents would fall within standard disclosure if proceedings had started, and early disclosure is desirable to dispose fairly of the anticipated proceedings, help resolve the dispute without proceedings, or save costs. It is not a tool for a competitor to raid a filing cabinet. Disclosure against a non-party (CPR 31.17) requires that the documents are likely to support the applicant's case or adversely affect another party's case, and that disclosure is necessary to dispose fairly of the claim or to save costs. Banks, hospitals and internet service providers are typical respondents. The non-party's costs of compliance are usually paid by the applicant.

Failure to disclose a document or to permit inspection means you may not rely on it without permission (CPR 31.21). The opposite problem is relying on a document you should have disclosed earlier: expect a sanction, an adjournment, and a costs order.

Electronic disclosure (Practice Direction 31B)

Electronic documents are still "documents." Practice Direction 31A para 2A.1 spells out that the definition covers email and other electronic communications, word-processed files and databases, material on servers and back-ups, deleted files, and metadata. Practice Direction 31B adds the process for cases likely to be allocated to the multi-track (and is good discipline on heavy intermediate-track IT disputes). Parties should discuss, before the first CMC, preservation, the scope of reasonable search, keyword and date filters, whether an Electronic Documents Questionnaire is useful, the format for exchange, how privilege will be identified and inadvertently disclosed documents handled, and whether a staged search is proportionate.

Keyword dumps without human quality control produce both under-disclosure and privileged material on the other side's USB stick. Preservation letters should go out as soon as litigation is reasonably in prospect: auto-deletion of chat logs after 30 days is a later explanation the court will not enjoy. On the fast and intermediate tracks, the CPR 28.2 menu is how the court keeps electronic disclosure proportionate. Do not copy a seven-party Commercial Court e-disclosure protocol onto a £40,000 intermediate-track claim unless the issues truly require it.

Privilege, without prejudice, and waiver

A party who claims a right or duty to withhold inspection must say so in writing, usually in list part 2, identifying the ground (CPR 31.19). The three FLK1 families are:

Open communications with a third-party witness that are not for the dominant purpose of litigation are not litigation privilege. A solicitor's bill narrative may be privileged in part and open in part. Without prejudice save as to costs (a Calderbank-style offer) remains protected on the merits but can be shown to the court when costs are decided, unless Part 36 occupies the field. Unambiguous impropriety (for example a threat to destroy evidence) can lift the without-prejudice cloak. There is no confidence, and no privilege, in communications that further a crime or fraud.

Waiver. Privilege belongs to the client. They may waive it expressly. They may waive it impliedly by deploying part of the advice in the proceedings ("we only sued because Counsel said we would win"). Collateral waiver then often lets the other side see the associated material needed to avoid an unfair cherry-pick. Inadvertent inspection of a privileged document is controlled by CPR 31.20: the inspecting party may use it or its contents only with the court's permission. If it was an obvious mistake, permission is usually refused and the document is returned. If you spotted the privilege stamp, kept reading, and quoted the advice to your client, you have a professional-conduct problem as well as a 31.20 problem (see the ethics chapter on mistakenly disclosed privileged material).

Exam traps

• Treating hearsay as automatically inadmissible in civil courts.
• Confusing the expert's duty to the court with loyalty to the insurer who pays the invoice.
• Equating disclosure with inspection, or standard disclosure with a perpetual train of enquiry.
• Calling every solicitor's file "litigation privilege" before a dispute exists.
• Assuming a without-prejudice heading on a letter that is actually a threat or an admission made outside negotiations.