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The Court of Appeal has dismissed an appeal against the decision of Sharp J in the Queen’s Bench Division, finding for the respondent in an action for libel (Miller v Associated Newspapers  EWCA Civ 39).
In doing so, the Court of Appeal has considered the weight to be given to contemporaneous documents as hearsay evidence and held that such documents should not automatically be given more weight than witness evidence. This judgment gives guidance as to how to approach hearsay evidence and the importance of providing context for such evidence.
Miller concerned an allegation of libel, to which the appellant newspaper pleaded the defence of justification. The judge held that justification had not been made out and awarded damages to the respondent. For the full facts and findings in the appeal, please see the full judgment.
During the trial the appellant had relied on contemporaneous documents and statements, but did not call anyone to give evidence in person, so that all the evidence it relied on was of a hearsay nature. The judge gave less weight to the appellants' evidence and preferred the respondent's witnesses' evidence, which cast the appellant's documentary evidence in a light more favourable to the respondent. On appeal, the appellant argued various grounds, including that the judge had failed to deal with the hearsay evidence appropriately.
The Court of Appeal noted that although contemporaneous documents would often provide better insight into the facts than the ‘unaided recollections of witnesses’, that did not mean that such documents should be given more weight automatically. Further, the court highlighted the importance of context, noting that even contemporaneous documents have to be read and understood in context and that, in many cases, that could only be supplied by those who were directly involved.
This judgment serves as a reminder to practitioners that when adducing hearsay documentary evidence, they should consider the need to provide context to that evidence.
Subscribers to Lexis®PSL Dispute Resolution can find our full practice note on Hearsay evidence here.
This article was first published on Lexis®PSL Dispute Resolution on 28 January 2014. Click here for a free 24 trial of Lexis®PSL.
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