National Crime Agency v Azam

CPR 33.4 permits a party to call the maker of hearsay evidence for cross-examination only where that maker can be produced as a witness. It does not provide a means of compelling an absent overseas witness to attend, or of requiring the party relying on the hearsay to secure attendance where that party cannot produce the witness.

Under CPR 32.1, the court may control or exclude evidence. Exclusion for non-attendance at cross-examination is exceptional and should occur only where justice requires it. The ordinary approach is to admit hearsay and assess its weight at trial.

The National Crime Agency sought an order in civil recovery proceedings requiring four overseas witnesses, whose statements had been served with hearsay notices, to attend trial in person or by video link if the defendant wished to rely on their evidence. The Agency relied on CPR 32.1 and CPR 33.4.

The application followed directions permitting the defendant to serve further witness statements and hearsay notices. The central issues were whether rule 33.4 authorised the order sought and whether the court should exclude, or attach little weight to, the evidence if the witnesses did not attend.

1. The application was refused. The order sought was not within the specific power in CPR 33.4. That rule addresses a party wishing to cross-examine the maker of a statement relied upon as hearsay. It permits that party to call the maker for cross-examination on the contents of the statement. It does not contemplate an order where the applicant cannot produce, and does not intend to produce, the witness.

2. Douglas v Hello! Ltd (No 4) [2003] EWCA Civ 332 did not establish a wider power. The circumstances there were consistent with the witness being capable of being produced. The reference to requiring the witness to be called concerned the exercise of the rule 33.4 power in that context.

3. Polanski v Condé Nast Publications Ltd [2005] UKHL 10 confirmed that the general case-management power in CPR 32.1 is wide enough to support an exclusionary order in an appropriate case. Such an order should not be automatic. It should be made only if, exceptionally, justice requires it, having regard to the general preference for admitting hearsay and assessing its weight.

4. The disputed evidence was important and contested, but it did not approach the exceptional circumstances required for exclusion. The trial judge would be able to assess the appropriate weight after knowing the precise circumstances of any failure to attend. There was no need for the Agency to obtain a pre-trial order, and the application was ill-founded.