Evidence

There are different types of evidence that may be put before a court, and particular considerations in the case of simple procedure actions.

This content applies to Scotland

Direct (oral) evidence

Direct evidence is the least contentious evidence as the other side and the sheriff have the opportunity to question the witness and ask for any clarification. Witnesses should attend the hearing. The person calling the witness is responsible for ensuring the attendance of the witness and is personally liable for her/his expenses (although these expenses will form part of the expenses of the case). A witness can only be formally cited to appear by a solicitor or sheriff officer. At least seven days notice needs to be given to a witness.

Documentary evidence

This is evidence in the form of a document such as a letter or notice to quit. Documentary evidence is usually referred to as a 'production'. A production is usually authenticated by calling the person who wrote it to appear as a witness to speak to the authenticity of the document. Where there is no dispute about the authenticity or content of a production this will not usually be necessary. A minute of agreement can be drawn up agreeing facts/documents not in dispute.

Real evidence

This is evidence in the form of an actual object or thing that becomes one of the productions in a case. This type of evidence could be used to show the damage caused by damp in a simple procedure action against a landlord. Real evidence must be identified by a witness.

Hearsay evidence

This is evidence of an oral or written statement which was made out of court and which is relied on in court to prove the truth of the matters stated. Evidence will only be considered hearsay if its purpose is to prove the truth of the matters stated. Hearsay evidence is admissible in civil cases [1] but has less weight than a direct witness statement. If one side has an oral witness and the other has only hearsay evidence and the evidence is contradictory, then the court is likely to believe the direct oral evidence.

Simple procedure

Evidence need only be led about facts that are not agreed. The normal rules on evidence do not apply to small claims. [2]

See the section on Simple procedure for more details about the requirements regarding evidence and witnesses.

Last updated: 11 June 2018

Footnotes

  • [1]

    Civil Evidence (Scotland) Act 1988

  • [2]

    s.35 Sheriff Courts (Scotland) Act 1971