What are the Rules on Court Evidence?

The strict rules of evidence do not apply to hearings in the small claims court. The intention is that litigants in person will find the small claims court to be an accessible means of obtaining justice. The rules governing all aspects of small claims hearings are simplified and state that hearings will be informal.

The Law on Evidence in the Small Claims Court

Part 27 of the Civil Procedure Rules (CPR) sets out guidance for the conduct of small claims trials. This states that the usual rules on evidence at a court hearing do not apply to small claims cases. The only provision about evidence in general that does apply is that the court has the power:

• to control the type of evidence it requires;
• to define the issues on which it requires evidence to be given; and,
• to specify the way in which evidence is given.

This rule is compounded by the very wide powers a judge has to decide how to conduct a small claims hearing.

Documentary Evidence

Whenever a case is proceeding towards a trial, the court will give directions which tell the parties what they need to do in preparation for the final hearing. For most types of cases this will include the preparation and exchange of witness statements and the disclosure to the other side of any documentary evidence which may be relevant to the case.

In the small claims court the directions given to the parties are usually very basic. In most small claims cases the parties will simply be told to send copies of all documents on which they intend to rely to the court and the other party at least seven days before the hearing. The parties are also told to bring the originals of all documents to the hearing. The types of documents will depend on the nature of the case but may include:

• Contracts and agreements;
• Letters, emails and any other correspondence between the parties;
• Invoices;
• Receipts;
• Statements of account.

The judge has the power to give more specific directions if a particular case requires them.

Witness Statements

There is no general requirement in the small claims court for a party to provide a witness statement. However, a witness statement can save time and help both the party and the judge focus on the relevant facts and issues of the case. If a party does prepare a witness statement they must send a copy to the court and their opponent before the hearing.

Oral Evidence

Part 27 of the CPR contains special guidance on the use of oral evidence in the small claims court. In most hearings any person giving evidence must take a sworn oath or affirmation. However, in the small claims court the judge can allow parties to state their case – or give evidence – in a natural, conversational way.

If the judge becomes sceptical about a party’s version of events he may then ask the party to go on oath. Some people who take a liberal approach to the facts will often suddenly remember to tell the truth when they are put on oath - and reminded that it is a criminal offence to lie whilst on oath.

Cross Examination

Once a party has given their side of the story it is usually open to the other side to question them about anything that they have said. If a party’s case is set out in a witness statement the other side can ask questions about anything in the witness statement. The purpose of cross-examination is to cast doubt on that party’s case and / or to add weight to the other side’s case.

In the small claims court the judge has the power to limit cross-examination. Rather than the parties cross-examining each other the judge may even ask questions himself. This will prevent a litigant in person, unused to the cut and thrust of a courtroom, being at a disadvantage. The hearing is likely to be much less combative than most trials.

Expert Evidence

The use of expert evidence in small claims trials is extremely restricted. A party may only rely on expert evidence if he has obtained the judge’s permission in advance.

The Weight of Evidence

Although the strict rules of evidence do not apply to small claims hearings, it does not mean that anything goes. When deciding a case the judge will take into account all factors – including the type and quality of any evidence that he has heard or seen during the trial.