Curtis Reid v Cable & Wireless Jamaica Ltd et Al

• Jurisdiction: Jamaica
• Judge: ANDERSON. J
• Judgment Date: 21 July 2004
• Judgment citation (vLex): [2004] 7 JJC 2101
• Date: 21 July 2004
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO: C.L. R-037 OF 2000

BETWEEN

CURTIS REID

CLAIMANT

AND

CABLE & WIRELESS JAMAICA LIMITED

1 ^ST DEFENDANT

AND

JENTECH CONSULTANTS LIMITED

2 ^ND DEFENDANT

AND

WAYNE REID

3 ^rd DEFENDANT

^{nd nd rd}

CIVIL PROCEDURE - Witness statement - Application to strike out parts - Hearsay Rule - Civil Procedure Rules 2002, Rule 29.8(2)

ANDERSON. J

1 This is an application by the Defendants herein to strike out certain portions of the Witness Statement of the Claimant, Curtis Keslake Reid, on the basis that it offends against the Hearsay Rule. It might be thought that an application of this nature would be unnecessary, and certainly undeserving of judicial time to produce this brief note on my ruling. However, as will be apparent from some of my comments below, despite its longevity, as witnessed by its existence for over four (4) centuries, the elusiveness of a perfect definition continues to plague litigants and courts alike. It is said that the origins of the hearsay rule can be traced to the trial of Sir Walter Raleigh in 1603, who was found guilty of high treason on the basis of testimony that someone had overheard someone else say they heard Raleigh would slit the King's throat.

2 It is not my purpose here to launch into some treatise on the law of hearsay. But I believe that at this particular time in our emerging jurisprudence and with the recent enactment of the new Civil Procedure Rules 2002, (The CPR), there is need to spend some time on this as it will be a matter which faces judges every time they are in a trial and must look at witness statements.

3 An Extract from The Law Commission for England and Wales Consultation Paper No 117 on "The Hearsay Rule in Civil Proceedings" and Part V "Provisional Conclusions" had this to say:

"There can be little doubt that the rule excluding hearsay is the most confusing of the ailes of evidence, posing difficulties for courts, practitioners and witnesses alike. Because litigants need to know in advance what evidence they should assemble, it is of particular importance that the rules should be as easy to understand and to apply as possible whilst continuing to serve the aims of evidence law. Any reform of the hearsay rule which succeeded in improving the clarity of understanding of its purpose and the manner in which it is to be applied would do much to improve evidence law as a whole".

4 It also concluded that:

"The weakness of the exclusionary rule against hearsay cannot be remedied just by way of a clearer explanation of the present law: the present law is irremediably difficult to understand and explain to the wide audience that is expected to comply with it",

5 In England, the rigidity and complexity of the rule have been softened by a number of statutes amending the law of hearsay as it applies to both civil and criminal matters. Here in Jamaica, our own application has been modified by the amendment to our Evidence Act, as well as the facility to serve a "Notice of Intention to tender Hearsay Evidence" on the other side in litigation, requiring that other side to give notice that it will require the maker of the document in question to be present to give oral evidence.

6 But in this case, as in another that came before me in the recent past, the issue of hearsay evidence has been raised within the context of the CPR 2002. The issue which also became apparent in England when they introduced their new rules, arose from the fact that witness statements would now constitute the evidence in chief of witnesses in litigation. Since in many cases those witness statements would be crafted and even drafted by lawyers, there was found a tendency to "gild the lily", and to include in such witness statements, hearsay material. So, in the matter that had come before me earlier, there was an attempt to exclude an expert witness report on the basis that it contained hearsay evidence.

7 In the matter now before me, the importance of this issue of hearsay is increased because the court will be sitting with a special jury, and there is it seems to me, a greater danger of hearsay evidence, if let in, corrupting the findings of the jury in a way that may be less likely when a judge sits alone. It is worth noting in passing that the CPR 29.8 (2) now states:

Where a witness is called to give oral evidence under paragraph (1), his or her witness statement shall stand as evidence in chief unless the court orders otherwise.

8 Thus, unless the court "orders otherwise", the only way in which the jury would get to "hear" the witness's testimony, would be by reading a copy thereof, as normally all that will take place before them, is the cross-examination of the witness.

9 It was submitted by the defendants' counsel, that CPR 29.5 (1) (c) prevented the claimant's witness statement from including "any matters of information or belief which are not admissible". That, in effect, was a restatement of the rule against hearsay. The...