Gregory & Anor v Moore & Ors

Opinion evidence is admissible in civil proceedings where it concerns a relevant matter and is given by a suitably qualified witness. CPR 35 applies only to experts instructed to provide evidence for the proceedings; evidence prepared independently for another investigation is not subject to its permission requirements. Factual material recorded in an official investigative document may be admissible hearsay even where it also contains opinion and the original sources are unidentified. The court should exercise caution before excluding prima facie admissible evidence at an interlocutory stage, since the trial judge is generally better placed to assess reliability and weight. Evidence placing a person within a broad area need not necessarily involve expert cell-site analysis.

The Family alleged that the first defendant had aided, abetted or procured her husband’s unlawful killing and sought to rely on evidence from a Ukrainian criminal investigation concerning her movements and mobile-phone location.

The first defendant applied before trial to exclude a paragraph of a witness statement, annotated Google Earth images and a Ukrainian document recording an inspection of mobile-phone records. She argued that the material was opaque, inadmissible hearsay and unauthorised expert evidence. The central issues were whether the material was opinion evidence requiring a qualified expert, whether CPR 35 applied, and whether the court should exclude it before trial.

1. Admissibility of expert evidence. Opinion evidence is admissible under section 3(1) of the Civil Evidence Act 1972 only where it concerns a relevant matter and the witness is qualified to give expert evidence. The recognised expertise must be governed by recognised standards and the witness must possess sufficient familiarity and knowledge for the opinion to be potentially valuable.
2. Scope of CPR 35. Following Hoyle v Rogers and the summary adopted in Illumina, Inc and another v TDL Genetics Ltd, CPR 35 does not apply to expert evidence obtained independently for another purpose. Permission is therefore unnecessary merely because such material may contain expert opinion.
3. Cell-site material. Cell-site evidence may be powerful but cannot locate a phone with pinpoint accuracy. However, the court could not conclude that the broad-area annotations relied on by the Family could only have been produced by a qualified expert. They might represent hearsay factual evidence based on ordinary examination of phone records, or evidence derived from an unnamed suitably qualified expert.
4. Interlocutory exclusion. Hearsay is generally admissible in civil proceedings, subject to notice and assessment of weight. The court has power under CPR 32.1 to exclude otherwise admissible evidence, but should be cautious before doing so before trial.
5. The challenged witness-statement paragraph was prima facie admissible hearsay. The Ukrainian Protocol was also admissible as hearsay evidence of fact, or of fact and opinion. Neither should be excluded before trial. The application for the principal relief was dismissed. The court would hear further submissions on any outstanding application for permission to rely on expert evidence.