Types and sources of evidenceRe [1995] 2 FLR 639Times 27 AugustTimes 23 JuneTimes 2 August
Evidence
10.1Evidence is apparently factual information or material. ‘Apparently’, because it may not be reliable. ‘Factual’, to distinguish it from legal material or argument on the facts. ‘Material’, because it may involve inspecting a physical object. According to the context and usage, it can mean information or material that:
•a party wishes to present in support of a case or to qualify or refute that of another party; or
•the tribunal allows the party to present; or
•is admitted into consideration by the tribunal; or
•is accepted as probative by the tribunal.
10.2Here, the usage depends on, and should be clear from, the context.
Types of evidence
10.3Evidence may be classified in a number of ways.
Direct and circumstantial
10.4Evidence may be given directly of facts in issue or it may be given on other matters from which those facts can be ascertained.
1Gray J in Al Amoudi v Brisard [2007] 1 WLR 113 at [33]. The former is known as direct evidence, the latter as circumstantial evidence. Circumstantial evidence is used as a basis for drawing inferences.
2See chapter 11. It is the evidence that is circumstantial, not the fact proved by the evidence.
10.5The same evidence may be both direct and circumstantial. Assume that a witness gives evidence of fact A, which is a fact in issue. The evidence is direct evidence of fact A. But it may also be used as a basis for inferring fact B. In that respect, it is circumstantial evidence.
10.6It may be necessary to use both direct and circumstantial evidence in relation to the same fact. The most obvious instances are anything that can only be known by the person concerned, such as the person’s mental state or experience of pain. The person concerned can give direct evidence of, say, pain. But that evidence can only be confirmed or refuted by circumstantial evidence.
Ancillary evidence
10.7Some evidence may be directed not at the facts in issue, but at other evidence. It may be presented to undermine that evidence. For example: it may be used to show that a witness is a poor judge of distance. Or it may be presented to support that other evidence. For example: it may be used to show that the witness has good powers of observation.
Corroboration
10.8Evidence is corroborative of other evidence if it supports that evidence by increasing its probative worth. It may do so directly or indirectly. It may be necessary as a matter of law, but for tribunals it will usually be necessary or desirable for evidential reasons.
3If tribunal relies on corroboration for evidential reasons, it is good practice to make this clear in its reasons for decision, as representatives may otherwise argue that the tribunal has required corroboration as a matter of law.10.9Corroboration is necessary as a matter of law only if the evidence is not sufficient in law if it is given by a particular witness. For example: the witness’s capacity may be disabled by age or mental in capacity.
10.10Otherwise, mere repetition does not necessarily increase the probative worth of evidence. For example: evidence from a number of witnesses who were equally badly placed is of no greater value than the evidence of each one. The probative worth of evidence is only increased by corroboration if the other evidence is not affected by the same factors that potentially reduce the worth of the evidence being corroborated.
10.11In some circumstances, it may seem that corroborative evidence is purely cumulative in its effect. Assume that five equally placed witnesses give the same evidence. This may seem merely cumulative. But even here, the value of the cumulative evidence is that it removes possible concerns about perception, recollection, powers or description and all other factors that might affect the probative worth of the evidence of each witness considered individually.
Fresh evidence
10.12This refers to evidence that was not previously available. The classification is relevant in two circumstances. First, in some types of appeal evidence is only admissible if it is fresh evidence. Second, it may be a condition of a review by a decision-maker that it be based on fresh evidence. The meaning is the same in both cases.
10.13It was defined in the context of the admissibility of evidence on appeal by Denning LJ in
Ladd v Marshall:
4[1954] 1 WLR 1489.To justify the reception of fresh evidence … three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.
5[1954] 1 WLR 1489 at 1491.10.14In the context of a review of a decision, it was defined to similar effect by the Court of Appeal in
R v Medical Appeal Tribunal (North Midland Region) ex p Hubble.
6[1959] 2 QB 408.10.15The principles were laid down in the context of civil appeals, in which evidence had been adduced before the court below. They must be applied flexibly in the context of an appeal from a decision-maker. In such appeals, fresh evidence should be admitted if it is in the interests of justice to do so.
7British Telecommunications plc v Office of Communications [2011] 4 All ER 372 at [68]–[74].10.16As Hale LJ noted in
Hertfordshire Investments Ltd v Bubb:
8[2000] 1 WLR 2318 at 2325. ‘The
Ladd v Marshall criteria are principles rather than rules …’. They may be relaxed in children’s cases, but only to take account of unusual circumstances.
9Waite LJ in Re S (Discharge of Care Order) [1995] 2 FLR 639 at 646. See also K v K (Abduction) (No 2) [2010] 1 FLR 1310.10.17In addition to the listed conditions, it is relevant to consider delay. As Ward LJ explained in
Lifely v Lifely:
10[2008] EWCA Civ 904 at [38]; (2008) Times 27 August.Delay was not a relevant matter in Ladd v Marshall but there is no reason why delay should not be brought into account in exercising the court’s discretion whether or not to admit fresh evidence. It is plainly a material factor.
The Court also balanced the rights of the parties under Articles 8 and 10 of the European Convention, as the evidence adduced was private.
10.18If a tribunal reopens a case after a hearing but before its decision is promulgated, these conditions are applied more flexibly, although the threshold for allowing in the new evidence remains a high one.
11Fisher v Cadman (2005) Times 23 June.Where the evidence comes from
10.19The material on which the tribunal makes its findings of fact may be put to it by the parties, their representatives and their witnesses or come of the tribunal’s own knowledge or expertise.
10.20The parties may present material orally or in writing. It need not be corroborated, although this may affect the probative worth of the material. It may be given of the witness’s personal knowledge or it may be hearsay – that is, something the witness heard from someone else. Occasionally, an object may be produced as evidence, but this is likely to be rare in tribunals.
10.21The evidence may be received by the tribunal’s own observation. For example: a tribunal may observe a claimant’s ability to walk during a hearing in a disability case or the location of particular landmarks on a site visit in a boundary dispute.
10.22Evidence recorded in a decision in one case may be relied on in later cases, provided the parties are aware of it and able to comment on it.
12R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 2 QB 456. R(I) 5/61 is an instance of a decision being reported solely for the evidence recorded it in.Evidence given by representatives
10.23As regards evidence given by a representative with personal knowledge, this is admissible as any other evidence, especially if the representative has a particular expertise.
10.24As regards evidence given by a representative without personal knowledge on a
contested matter, the Commissioners said that tribunals were not entitled to rely on such evidence.
13R(I) 36/61 at [18]; R(I) 13/74 at [9]; R(SB) 10/86 at [5]. However, this may overstate the position. A tribunal has power to direct the manner in which evidence may be provided.
14See: UTR r15(1)(e); GRC Rules r15(1)(g); HESC Rules r15(1)(e); IAC Rules r14(1)(e); Lands Rules r16(1)(e); PC Rules r18(1)(g); SEC Rules r15(1)(e); Tax Rules r15(1)(e); WPAFC Rules r15(1)(e). As part of its enabling role, it may allow a representative to set out the evidence of a party who is nervous, inarticulate or otherwise unable to present the evidence. Whether it does so will depend on the circumstances, including: (i) whether the party is able to confirm that the representative has correctly stated the evidence; and (ii) whether it will be possible to question the party on the evidence given by the representative.
The tribunal’s own knowledge
10.25This may be general, local, specific or specialist.
General knowledge
10.26This is the information of which courts and tribunals take judicial notice. It covers information that is generally known or can be easily found from a source of reference. Examples are the day of the week on which a particular date fell in a particular year and the meaning of words.
Local knowledge
10.27This is information that is known to those who live or work in a particular locality, such as the location of a particular building, the distance between locations and the provision of a public transport service. If the tribunal is a local one, it may be entitled to rely on its members’ knowledge of local conditions.
15Lord Reading CJ in The King v Tribunal of Appeal under the Housing Act 1919 [1920] 3 KB 334 at 341.Specific knowledge
10.28This relates uniquely to the case and comes of the tribunal’s observations of the parties or of some relevant location. The evidence can only be taken into account if it is relevant and reliable; it must then be given its proper significance.
16R(DLA) 8/06.Specialist knowledge
10.29This is likely to come from panel members who were appointed for that knowledge. It may be used in a number of ways.
10.30First, a member’s expertise may help in obtaining evidence during a hearing. The tribunal may, for example, have power for a medically qualified member to carry out a medical examination. Or a member’s accounting knowledge may be used to identify relevant questions.
10.31Second, the member’s knowledge may be used to help the tribunal in assessing the evidence.
10.32Third, the member’s knowledge may be used to explain, complement or even contradict other evidence.
17Lord Parker CJ in Crofton Investment Trust Ltd v Greater London Rent Assessment Committee [1967] 2 QB 955 at 967. This is permitted in order to redress the imbalance that may exist between the knowledge of the parties and their access to advice and evidence.
18Lord Goddard CJ in R v Brighton and Area Rent Tribunal ex p Marine Parade Estates (1936) Ltd [1950] 2 KB 410 at 420. However, this knowledge must be disclosed if one of the parties would be taken by surprise or would have no knowledge of it,
19Lord Parker CJ in Crofton Investment Trust Ltd v Greater London Rent Assessment Committee [1967] 2 QB 955 at 968. especially if it would be detrimental to that party.
20Willmer LJ in R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 at 476. The tribunal should explain in its reasons how and why it has used this knowledge.
21Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 597.10.33The distinction between the specialist knowledge of the members of a tribunal and expert evidence on the issues must be maintained. It is not permissible for members to obtain expert advice on the issues in a case and then take that into account as their own specialist knowledge. In
R v City of Westminster Assessment Committee ex p Grosvenor House (Park Lane) Ltd,
22[1941] 1 KB 53. the Court of Appeal was concerned with the valuation of property for rating purposes. The Committee made use of an expert report on the effect of the war on valuation. The majority of the Court of Appeal decided that the report should have been disclosed to the parties, whether it was obtained before or after the proceedings began and whether it was general or specific in character. du Parcq LJ explained why:
It is said that as the committee is entitled to use its own knowledge and experience, and is not obliged to state the result of those to the contestants, it must follow that it can enlarge its knowledge by calling in an independent expert without coming under the necessity of revealing his evidence. One answer to this contention and we think a sufficient answer, is that the experience of an expert tribunal, such as this, is part of its equipment for determining the case. Litigants must take that experience as they find it: and because the tribunal is assumed to be impartial they have no grievance if they cannot test it by cross-examination. An expert witness or adviser, however eminent, is in a very different position. He must not be substituted for the tribunal. Those whose claim is being considered have a right to question and to test every statement he makes, and any opinion he expresses. If that opportunity is denied them, justice is not done.
23[1941] 1 KB 53 at 69.10.34Nor may the tribunal undertake its own research without allowing the parties a chance to deal with it.
Busmer v Secretary of State for Defence24[2004] EWHC 29 (Admin). was an appeal against the decision of a Pensions Appeal Tribunal. After the hearing the medical member of the tribunal undertook some further research into the source documents on which some of the evidence was based. Newman J held that the tribunal should have adjourned the hearing with notice that the research would be conducted and reconvened to allow the parties to comment on it.
25[2004] EWHC 29 (Admin) at [31].10.35The use of specialist knowledge may involve some fine distinctions in the way that the knowledge is deployed. They were analysed by Phillips J giving the judgment of the Employment Appeal Tribunal in
Dugdale v Kraft Foods Ltd:
26[1977] ICR 48.The members of industrial tribunals are appointed because of their special knowledge and experience, and we have no doubt that they are entitled to draw upon it in playing their part in assisting the tribunal as a whole to reach a decision. The main use which they will make of this knowledge and experience is for the purpose of explaining and understanding the evidence which they hear. Certainly, they are entitled to use their knowledge and experience to fill gaps in the evidence about matters which will be obvious to them but which might be obscure to a layman. More difficult is the case where evidence is given which is contrary to their knowledge and experience. If such an occasion arises, we think that they ought to draw to the attention of the witnesses the experience which seems to them to suggest that the evidence given is wrong, and ought not to prefer their own knowledge or experience without giving the witnesses an opportunity to deal with it. Provided that this opportunity is given there seems to us to be no reason why they should not draw on their own knowledge and experience in this way also. But it is highly desirable that in any case where particular use is made by an industrial tribunal of the knowledge or experience of one or more of their members in reaching their decision this fact should be stated, and that particulars of the matter taken into account should be fully disclosed.
27[1977] ICR 48 at 54–55. For a similar analysis applied to advice obtained by a local government officer reviewing a decision on priority need for accommodation, see the judgment of Carnwath LJ in Hall v Wandsworth London Borough Council [2005] 2 All ER 192.Questions and answers
10.36Most, but not all, evidence will be given as an answer to a question. Even a written statement is likely to have been compiled from the answers to a series of questions. The terms of the questions are part of the context in which the answers must be interpreted.
10.37If the evidence was given at the hearing, the tribunal will have heard both the questions and the answers. Its understanding of the latter will be informed by the context of the former. However, it is possible that the question may have been interpreted differently by the tribunal and the witness. This is not always apparent. The witness may have information or a perception that affects the interpretation of the question and affects the information that is selected as the answer.
10.38If the evidence is recorded in a statement without the questions, it is much more difficult for the tribunal to take the questions into account. It will take the statement at face value unless the issue of interpretation is raised by a party. If a party challenges the apparent meaning of the statement on the ground that it has to be understood in the context of the questions asked, the tribunal must assess the argument. It cannot avoid the task on the ground that it is impossible. Nor can it rely on the statement as binding regardless of how it came to be compiled.
10.39A statement is not necessarily to be taken as conclusive of a person’s evidence just because it is signed.
28Barclays Bank plc v Schwartz (1995) Times 2 August, has sometimes been wrongly used to the contrary. The court was concerned with the validity and enforceability of a guarantee. It decided that illiteracy was not to be equated with intoxication or mental incapacity and that, even if the bank was aware of the illiteracy, the transaction was not on this account harsh and unconscionable so as to found relief in equity.Issues covered by an inquiry
10.40The report of an inquiry is admissible on the findings of fact and on the conclusions reached, for example on a person’s suitability for particular work. A tribunal is not bound by the findings or conclusions, but if it differs, it should explain why.
29Leveson J in Secretary of State for Education and Skills v Mairs [2005] ICR 1714.