So a bit more detail on Ground 7 of the Johnny Depp Appeal. In civil litigation (in England and Wales) hearsay evidence is admissible. In this context, this is a statement made by a witness but the witness does not attend trial to give oral evidence. Their statement is their (1)

evidence in chief. This means the court accepts that as their evidence and the other party can cross examine them on their evidence. To not cross examine a witness (or not challenge a part of a statement in cross examination) is to accept it. However there can be reasons why (2)

a witness cannot attend. Too far away, busy with something urgent, too ill etc. The Civil Evidence Act 1995 was intended to regulate hearsay evidence. There is prejudice on the other party if they cannot cross examine a witness on their evidence. Parties can agree (3)

a witness’ evidence so they don’t have to attend trial. I do this where a witness doesn’t attest to anything which we don’t agree with (and advise my client to agree the statement). A party must give notice of hearsay and ought to explain why they will not be called to trial (4)

I have not seen the hearsay notice of the LAPD officers but one can reasonably assume that it’s because they are on the other side of the world in a different time zone. JD would have served a notice on NGN that he would rely on the officers’ statements as hearsay (5)

The judge can place as little weight on a hearsay statement as possible using the checklist found in CEA 1995. It seems harsh but that’s why a party usually will call their witnesses to trial. The other party may wish to introduce new evidence to challenge the hearsay (6)

and the rules state that if they wish to do this, they must give notice within 14 days. The other option is to apply to the court for an Order compelling the witness to attend trial which is in the Civil Procedure Rules r33.4. A court would consider the application (7)

either on paper or at a hearing. I don’t know what specifically happened in this case but NGN got the Order and the LAPD officers were to give evidence (albeit by video link). As everyone knows, one officer was cross examined. As NGN put its case to the officer (8)

they would be allowed to make submissions as to why the officer’s evidence ought not be accepted. I won’t go into the judge’s ability to determine facts based on their evidence at trial. Once cross examination finished, NGN did not choose to cross examine the other officer (9)

The judge, in the judgment, used the weight checklist in CEA 1995 to assess the non cross-examined officer, treating his witness statement as hearsay. JD seeks permission to appeal on this point because he says the CEA 1995 no longer applied as the officer was available (10)

to give evidence. NGN suggest the judge was correct to do so. It is a very unusual situation because if a party makes the App to compel a witness to give evidence then that party wants to cross examine them. NGN could have not applied and submitted that the judge (11)

ought not to apply any weight to the statements. As explained, you don’t cross examine a witness (or part of their evidence) then you are accepting that evidence (or that part). JD says the officer was there to be cross examined. He may not have been physically in the court (12)

but he made himself available and NGN chose not to. Logically JD ground makes perfect sense. The officer being ready to give evidence is the same as if he travelled to London and was sat int he public gallery, waiting to be called. If NGN made an error, JD should benefit (13)

NGN shouldn’t have applied to call the officers. So why bother appealing this point in addition to the other grounds? The officer’s evidence, being accepted by NGN would have (or should have) effected the judge’s weight given to the cross examined officer. Even if the Judge (14)

could find reasons to not accept the cross examined officer, he would have had the accepted evidence of the non cross examined officer to bear in mind. So if I have a client who says something happened but he’s not a good witness when cross examined, a judge will take that (15)

into consideration. However if another witness is found to be credible and supports my client’s version of events then this shores up my clients evidence and the judge ought to give my client’s evidence more weight (16)

This is why it is important because the facts that the officers were attesting would support the assertion that AH didn’t have any injuries (and that goes to reduce her credibility). Obviously this is one of 7 grounds of appeal but from a legal perspective (17)

it is quite an unusual situation. I don’t think the Judge should have treated the statement as hearsay as the officer was ordered to give evidence. I do not think that an appeal on this single ground alone would lead to judgment being set aside but it is still important

I’ve not yet had the chance to review the judgment in full but I’ve looked through the commentary in the White Book (the big CPR text book) and as far as I am concerned a new retrial would only have the original evidence. However, CPR52.21(2) does allow new evidence which is ....

what their application is about and the white book commentary says that CoA may allow fresh evidence if there intends to be a retrial (suggesting it will be relied on at trial) and this should only be allowed “if it’s in the interests of justice”. If a retrial was allowed ...

and further evidence came to light then JD would need permission to rely on that at the retrial as cpr31.21 doesn’t allow a party to rely on evidence after disclosure without the court’s permission.