Lyubov Kireeva (as bankruptcy trustee of Georgy Bedzhamov) v Georgy Ivanovich Bedzhamov

Hearsay evidence should ordinarily be admitted where it is relevant, with the court assessing its weight. Exclusion for a witness’s non-attendance at cross-examination is an exceptional course, justified only where justice requires it.

A late hearsay application may be permitted where the delay arose from unforeseen circumstances, there is a good reason for extending time, and granting the extension is just in all the circumstances. Recently obtained documents may be admitted to the trial bundle where their inclusion is not unfair and the opposing party can address their evidential weight.

The applicant bankruptcy trustee sought permission to rely on three witness statements as hearsay after the witness refused to attend to give evidence. The application was made after the deadline imposed by directions for the remittal.

The respondent also objected to the late inclusion of notarial records and other transaction documents in the trial bundle. The court had to decide whether to extend time, whether to exclude the hearsay evidence, and whether the additional documents should be admitted into the bundle.

1. The hearsay application was granted. Although it was late, the need for the application arose from an unforeseen change in circumstances connected with the witness’s late refusal to attend. There was a good reason for extending time, and the extension was just in all the circumstances.
2. The court applied the approach in Polanski v Conde Nast [2005] 1 WLR 637 at [36]. Exclusion of hearsay because a witness does not attend for cross-examination should not be automatic. It is an exceptional remedy, and the preferable course is generally to admit relevant hearsay and determine what weight it deserves.
3. The same approach was supported by Daltel Europe v Makki [2005] EWHC 749 at [56], where exclusion of relevant hearsay was described as rarely being a proper use of the power under CPR Part 32.1(2). The evidence was relevant, and exclusion was not justified on proportionality grounds.
4. The witness’s reasons for non-attendance, alleged inconsistencies and the absence of cross-examination were matters affecting weight. They did not require exclusion at the interlocutory stage. The court would hear submissions on whether little or no weight should be given to some or all of the evidence.
5. The late notarial records and additional transaction documents were permitted into the trial bundle. The records were only recently obtained, the explanation for the delay was not directly challenged, and the related powers of attorney had been known to the respondent’s team for some time. The respondent remained free to make submissions on weight.