The Evidence Act 2006 was designed as a codification of the law of evidence. The Law Commission, which took many years over the evidence reform, was unequivocal in its view that there was a need[1]

…to break out of the complexity and incoherence which over the years the sheer number of cases and a technical approach to the rules of evidence have created.

There is no doubt that the Law Commission’s concern was justified. However, the aim of codifying the law of evidence was always an ambitious one.

The rules of evidence are not like the rules that define the substantive law. They are aimed at ensuring the fairness of the trial process, and are born from the concern that there are certain things that ought not to be heard by the decider of fact. They are removed from consideration lest they sully the decision-making process.

The removal of material from the decision-maker is principally a consequence of trial by jury. Most judges would back themselves to sift the wheat from the chaff, and it seems highly unlikely that the detailed rules of evidence would ever have been developed if judges had been the only deciders of factual matters.

The aim of stating the law comprehensively in the Evidence Act 2006 was always an ambitious one. The law of evidence is essentially the response of the courts to the rigours of the trial process, and it has developed incrementally to meet the needs of justice. It is therefore not surprising that issues have arisen concerning the relationship between the legislation and the common law.

This seminar is not a comprehensive review of evidence or the Evidence Act. It aims to highlight some of the problems that have arisen in civil litigation as a consequence of the rules – or lack of rules – in the Act. All the issues have a practical flavour, based on difficulties that have been caused in the course of litigation.