Sunley v Sunley

A document may be admitted to prove that it was made and contained particular statements, even where it is not relied upon to establish the objective truth of those statements. The distinction affects the document’s weight rather than its admissibility.

In civil proceedings, hearsay is not excluded merely because it is hearsay. A failure to give formal notice should not lead to exclusion where the document has been pleaded, addressed by both parties’ experts and relied upon in their skeleton arguments. Documents in an agreed hearing bundle are evidence of their contents unless the court orders otherwise or a party gives written notice of objection. Questions about an unsigned, provisional or unsupported report ordinarily concern weight and should be assessed at trial.

The claimants bought a petrol filling station for £162,500 after receiving the defendant surveyors’ mortgage valuation. They alleged that the surveyors negligently failed to recommend an independent investigation into possible underground contamination. A later draft report by RPS Technology Ltd identified contamination and estimated potential remedial expenditure of up to £30,000.

The claimants sought damages for the alleged diminution in value. Their valuation expert relied partly upon the existence and contents of the RPS report. Both parties had pleaded and adduced expert evidence concerning that report.

On the first day of trial in Leeds County Court, Mr Recorder Thorn QC ruled that the draft report was inadmissible. The claimants consequently submitted to judgment, and their claim was dismissed with costs. They appealed against the evidential ruling and judgment. The central issue was whether the report could be deployed at trial and whether its deficiencies affected admissibility or merely weight.

1. Appeal allowed unanimously; new trial directed. Clarke LJ, with whom Longmore LJ agreed, held that the RPS report should not have been excluded. The claimants were entitled to rely upon the fact that the report had been made and upon what it contained. That use did not depend upon proving that its statements and opinions were objectively correct. The material question was how professional valuers would have reacted to such a report when valuing the property: paras 37–39.

2. The unsigned and provisional character of the report, the inability to identify its author and the absence of supporting analysis were matters of weight. The trial judge could assess its reliability after hearing the evidence, including evidence from both parties’ valuation experts. The claimants’ evidence on causation and quantum might face substantial difficulties, but those issues required a trial. No application for summary judgment had been made, and such an application could not properly have resolved the factual disputes: paras 36, 39 and 42.

3. Section 1 of the Civil Evidence Act 1995 prevents exclusion in civil proceedings merely because evidence is hearsay. Even if the report was not otherwise admissible, no reasonable tribunal could have excluded it solely because the claimants had not given notice under CPR rule 33.2. The report had been relied upon in the pleadings, considered by both experts and addressed in both parties’ skeleton arguments. Justice therefore required its admission: paras 43–45.

4. Paragraph 27.2 of Practice Direction 32 supported that conclusion. A document in an agreed hearing bundle is admissible as evidence of its contents unless the court orders otherwise or a party gives written notice of objection. The defendant had given no such notice, and the Recorder had not purported properly to exercise a power to order otherwise: paras 46–47.

5. The claimants could withdraw their concession that the report would not be used to prove non-visual contamination or the £30,000 estimate. The report’s deficiencies again concerned weight. They remained bound by their separate concession that they would not allege visible leakage or contamination: paras 48–50.

1. Court of Appeal (Civil Division): The appeal was allowed in [2003] EWCA Civ 240. The judgment and evidential ruling were set aside, and a new trial before a circuit judge was directed. The claimants’ costs and the costs below were made costs in the case.

2. Leeds County Court: Mr Recorder Thorn QC ruled on the first day of trial that the draft RPS report was inadmissible. The claimants then submitted to judgment. Their claim was dismissed, and they were ordered to pay the defendant’s costs.