Evidence needed to sue someone

This guide will help you to understand what evidence is, why you need it and what to do with it. It is part of a series of guides about sorting out a dispute and going to a civil court.
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Introduction

This is just one of our resources to help you sort out a dispute in a civil court.

If you haven’t already, check out Should I sue? which looks at the pros and cons of suing. It also explains some of the key things you need to know before you go any further.  The rest of this series about sorting out a dispute and going to a civil court can be found on our Going to a civil court page

This guide is for you if you:

  • are thinking about suing (starting a civil claim) in either England or Wales, and
  • your case involves a claim for £25,000 or less, and
  • you are representing yourself (you are a litigant in person) and not eligible to have your case paid for by legal aid, a trade union, or insurance.

This guide is also for people supporting litigants in person, for example Personal Support Unit volunteers, CAB volunteers, housing support workers, advice workers and court staff, as well as relatives and friends.

Top tip – Have a look at Suing in the civil court – an overview of the process to get an overview of what a typical case might look like.

This guide is not for you if you are involved in:

  • a criminal case,
  • a family case (such as an application for a domestic violence injunction or a divorce),
  • a housing disrepair or housing possession case including mortgage possession,
  • an injunction (including court claims about anti-social behaviour)
  • a medical accident case,
  • a case involving defamation (that is libel or slander) or
  • a tribunal case (such as a discrimination or employment case).

Legal language

We try to explain any legal language as we go along, but there is also a ‘What does it mean?’ section at the end.

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What is evidence?

Evidence is information or materals relevant to proving the facts of your case. This may include information that doesn’t support your case – information that may end up helping the other side.

If you start a civil claim you have to prove the facts that form the basis of your claim unless your opponent agrees with (or admits) some or all of them. You do this by collecting and providing the court with relevant information. This information is called evidence.

It isn’t enough for you to say you know or believe something is true. If you want the court to decide in your favour you need evidence to support:

  • what you say happened,
  • why it’s someone’s else (the defendant)’s fault,
  • the loss the defendant has caused you , and
  • the costs and expenses you have had to pay.

Evidence gives the court a reason for believing that:

  • Something did or did not happen.
  • A ‘fact’ is or is not true.
  • Someone other than you (the defendant) caused the problem.
  • You have suffered the losses or expenses you claim.
  • The defendant should compensate you for your loss.
Proving your case

When you sue, it is your job (or burden) to prove your case by producing relevant evidence to support what you say happened and to show the loss you were caused and the expenses you have had to pay. Lawyers call this ‘the burden of proof’.

Claimant = person or organisation who starts the case.

Defendant = person or organisation the case is brought against.

The judge must decide whether your version of events or the defendant’s is more likely than not to be correct. Judges very rarely say that a party or witness is lying. They usually just say which version of events they prefer. To win a civil claim, you have to prove your case to a level of proof called ‘the balance of probabilities’. This means that your account and the evidence in support of it is more likely than not to be true. You may hear this level of proof called ‘the standard of proof’ or ‘the civil standard of proof’.

The need to show that your case is more likely than not to be correct applies both to proving that the problem is legally the defendant’s fault (called ‘liability’) and how much your claim is worth (called ‘quantum’).

You don’t have to prove your case ‘beyond reasonable doubt’. This is a different and higher standard of proof that applies to criminal cases only. So, in a civil claim, you don’t have to show that your version of events is almost certainly correct, only that it is more likely than not to be correct.

There are rules about when you produce your evidence. Parties are expected to exchange key documents during the pre-action protocol stage, when they will also be letting each other know what their arguments are. If you do not resolve the claim in the pre-action stage and you end up issuing court proceedings, a judge will set a timetable (directions) for the things that need to happen well before the trial. This will include the exchange of documents between the parties, and then (if appropriate) the exchange of witness statements, and then expert evidence. You can’t leave it until the last minute to provide the defendant with evidence, to surprise or ambush them.  

The different kinds of evidence

Courts have rules about what they accept as evidence. This is to make sure that judges only consider fair, reliable and relevant evidence when making their decision.

Documentary evidence

Documentary evidence is written information, which can be paper or digital for example:

  • estimates
  • receipts
  • invoices
  • repair quotes
  • letters, emails, texts, faxes, notes
  • payslips, timesheets (or accounts If you’re self-employed)
  • a diary or calendar
  • written agreements
  • bank statements
  • photographs, video clips, voice recordings, CCTV recordings
  • diagrams
  • medical records
  • an organisation's policies, procedures

Sometimes you won’t have the evidence yourself, so you have to ask someone else to provide it. For example, if you need a copy of your medical records, you will have to ask your GP or treating hospital for them. And if you need copies of your payslips, perhaps because you have mislaid the originals, you will have to ask your employer, who may be the defendant.

Real evidence

Real evidence is an object you use to prove a disputed fact, for example, a defective part used to repair your fridge unsuccessfully or damaged belongings. Real evidence is also sometimes used to prove it exists (for example, if you have a bike accident, it would be sensible to keep your bike if it was damaged in the collision, and the clothing that was ruined by the accident, to prove the damage). You may also hear this kind of evidence called tangible evidence.

Real evidence is also sometimes used to show evidence of condition, which helps to show an item’s value. For example, if you say your nearly new designer bag was ruined, and the defendant says it was old and a fake and worth very little, you need to hold on to the ruined bag until the other side has had an opportunity to inspect it. In most cases it may be sufficient to offer photographs of relevant real evidence. However, it is a good idea to keep it and offer it for inspection by the defendant or the judge.

What will a court accept as documentary or real evidence?

 

Evidence has to be relevant

The court is only interested in you using evidence which is relevant to the issue of liability (who is legally responsible) or value (how much your case is worth) in your case. If you try and use evidence that isn’t relevant the court is likely to reject it. You have a duty to disclose relevant documents, even if they harm your case or support the defendant’s case, and the defendant has the same duty.

Evidence has to be ‘admissible’

 “Admissible” is a legal word which is used to describe evidence that is allowed to be used in court. For instance, evidence may not be admissible if it has been obtained improperly or illegally. Sometimes parties disagree about whether something (for example, a secret recording) is or is not admissible and the court has to decide whether to allow it or not.

Just because a court (or a defendant) accepts that you can use something as evidence doesn’t mean they are agreeing that what you say or show them is right or proves anything. That is something they still have to decide.

What’s a bit confusing is that you sometimes hear lawyers talk about something being ‘admitted as evidence’ meaning that the court (and defendant) accept you can use something as evidence. But you also hear lawyers saying, for example, that the defendant ‘admits’ something meaning that the defendant agrees that what you are saying is correct and that they don’t dispute that particular part of your case.


Collecting and preserving evidence

‘I sat on an office chair and it just collapsed under me. I hurt the base of my spine and was off work for a month. By the time I got back, all the office furniture had been renewed – they said it was a routine upgrade after five years – and my chair had vanished. They denied any of the furniture was defective, and that I’d just been clumsy. I wish now I’d got my friend to get the caretaker to put the chair to one side.’

Try to collect and preserve evidence as soon as possible where there’s a possibility the evidence may disappear. If you have an accident at work, get colleagues to take photographs and where appropriate get the defective equipment saved. For example, you may need to ask the caretaker to label and store an item while the accident is investigated or write to your line manager asking them to make sure the item that caused your accident isn’t disposed of.

Make sure you complete an accident report form or book If you have an accident at work. Every employer with more than 10 employees is required by law to keep an accident report book or set of forms, which they are required to make available to you to complete. Or you can ask a colleague to complete it for you, for example, if you are off sick or in hospital. If your employer completes it, you should check what they’ve said and put your own comments in writing to them if it’s inaccurate.

If you have an accident elsewhere, get friends to take photographs in case street signs get changed, or potholes repaired before you can get there. Use a coin such as a 50p piece or a tape measure in your photos to show the height of what you tripped over or the depth of a hole in the street or roadway.

If you have paper evidence such as receipts which are on paper likely to fade, make sure you take photocopies before that happens.

If you have anything such as texts or photos on your phone, make sure you back them up or print them off. And make sure you back up and store any electronically held evidence safely somewhere other than just on the original device, for example on a separate hard disk or PC.

You have a duty to preserve all relevant evidence, not just evidence which supports your case.

Witness evidence

If you need to prove something and you don’t have any documents to help you, or you have documents but they need to be explained, you may need to prepare witness evidence. It is what you or another witness say to the court about your case.

Witness evidence takes two forms:

(1) Witness statements

You have to prepare witness statements from all your witnesses well before the trial. There are rules about what a witness statement should look like and include. Both sides have to exchange the witness statements which have been prepared for their own witnesses to help each other see the strength and weaknesses of each other’s cases. See ‘How to sue’ – Witness statements – for more information and an example witness statement.

Each witness’s evidence has to be about the facts and based on their own knowledge or belief. Witnesses must make it clear whether what they say in their statement is from their own knowledge, or a matter of information or belief. They must also say what the source of any matters of information or belief is.  

You shouldn’t include statements which are just your opinion about something. Only an expert witness, such as an engineer or a doctor can do this, when they give evidence about something they are experts in, and which is relevant to the dispute. For example, a medical expert’s opinion about whether or not you will fully recover from an accident.

Where possible choose an independent witness (not a member of your family or a friend) to give evidence because unlike your family and friends they don’t have an interest in the outcome. If the only witnesses are family or friends, and sometimes they will be the only witnesses, you need to do your best to ensure that their witness statements are as factual and neutral as possible.

It may be that you are the only person other than the defendant who was involved in the relevant events. In that case, you may need to prepare a witness statement for yourself, explaining to the court any points which you are unable to deal with using documents, or where you do have documents but they need explaining.

Try to get witness statements as early as possible, especially from strangers Witnesses are likely to be able to recall details more easily shortly after an incident than if you ask them some time afterwards. If your witnesses include strangers they may no longer be contactable at the contact details they have given you, or they may lose interest or change their minds about helping if you leave it too long.

(2) Oral evidence

Oral evidence is spoken evidence. You may also hear this kind of evidence called oral testimony or witness evidence.

Witnesses may be required to give oral evidence at trial about the things they have said in their witness statement, if the other parry does not accept the witness’s evidence and wishes to cross-examine them.

Hearsay

Hearsay is second hand evidence, where a witness gives evidence of a fact based on what was said to them by someone else.

Example of hearsay evidence:

‘I got a local handyman to do some house repairs while I was out at work. He invoiced me for five hours work, but my neighbour told me that she’d been chatting to the handyman, and he’d told her it was only two hours’ work, and he was expecting to be on his way before lunch’.

So, if the neighbour won’t or can’t be a witness, that part of your witness statement which includes the neighbour’s account will be ‘hearsay’. A civil court  accept hearsay evidence provided the witness giving the hearsay evidence will be available to give oral evidence at trial if required.  However, the court is likely to give it much less weight than other forms of evidence, because it’s not something you saw or heard yourself.

Expert evidence

If you need to prove something which requires technical or specialist knowledge, and which the judge may need specialist help with, you may need to consider asking for court permission to rely on the evidence of an expert. For instance, if you are in dispute with a surveyor because you believe that their Homebuyer’s Report was negligently prepared, you may need an expert surveyor to back up your case.

An expert witness has to be someone independent, who was not involved in the circumstances leading up to the claim. The expert’s overriding duty is to the court, which means that they are there to help the judge make the right decision, not to help you win your case.

The court will have to authorise your use of expert evidence, and will do so only where expert evidence is reasonably required to resolve the claim.

Instructing an expert can be expensive so you will need to weigh up the cost against the potential value of the claim. It may be appropriate to use a single joint expert to keep costs down. This means one expert, who both parties will give instructions to and ask questions of.

Expert evidence is presented in a similar way to witness evidence. The expert will produce a report and, if necessary, they may also give oral evidence at the trial.

Anticipating what the other side might say

 You need to think about what points the other side may make to support their version of events and what evidence you need to collect to disprove what they say.

Jas's story

‘I work in a shop and I've been there three years. I'm on a rota for different jobs, being on the till, or staffing the changing room, for example. We get given our rotas fortnightly. On Tuesday 14 May I was down to be on the till, so I wore my slip-on mules as they are comfortable and I would be standing all day. When I was on a break, my manager told me that as they were short-staffed, I would have to bring down stock which meant going up a ladder to the stock area. I said I wasn't suitably dressed (as well as my mules, I had a short skirt on) but she insisted. My friend Mia was with me in the staff room when she said it. I've never been told to work outside my rota'd duties before. On my third or fourth time coming down the ladder I slipped and fell and hurt my back and I've been off work since. I should never have been asked to go up that ladder, it's all their fault.’

Jas’s employer is likely to say that the accident was her own fault because she came to work inappropriately dressed. Jas needs to anticipate this point and be prepared.

She should:

  1. produce her rota showing she was to be on the till. If she doesn't have it anymore, she should ask her employer to produce it.
  2. get a witness statement from her friend Mia. This should include what Mia overheard said between the manager and Jas, that staff were rota'd and not expected to do work outside the rota, and that Jas's clothing and footwear were normal and acceptable workwear for being on the shop floor.
Do I have to prove everything?

The court only wants you to use your time (and theirs!) to prove those parts of your claim which the other side disputes.

One of the important reasons for communicating with the other side before you issue a claim is to identify exactly what you disagree about. (See pre-action conduct and protocols).

For example, if you claim you lent your neighbour £1,000 for two months, and they formally agree in writing that this is correct, then you don’t have to prove the debt, the amount owed, or the date they were due to repay it. Your neighbour has admitted all the facts. You are suing simply because they haven’t paid it back.

But if the same neighbour agrees there was a loan but they borrowed £750 not £1,000 then you have the job of proving that the loan was for £1,000 not £750. And if the neighbour agrees they had money from you, but says it was a gift not a loan, you have the job of proving it was a loan not a gift.

Witnesses

that any witness who can give information to support your case understands their role. If necessary, are they willing to attend court? Sometimes people who are happy to talk to you about what they saw or heard are reluctant or refuse to help when they realise you want to write down what they have told you in a statement and get them to sign it.

It may help to explain to your witness that they could make the difference between you winning or losing your case. Hopefully, if they were ever in a similar situation, they would be lucky enough to find someone who would do the same for them.

Don’t delay - it takes time to prepare a witness statement. It needs to be clear, logical and in language the witness understands and would use themselves. It must reflect what they told you and not be ‘spun’ into something similar but which suits your case better. You must not tell a witness what you want them to say or put words into their mouth.

The advantages of calling a witness are that, if you get as far as a trial, they may give clear, direct evidence that supports your case. The disadvantages are that your witness may be vague, forgetful, unsure, frightened, or panicky. They may not turn up or end up being more useful to your opponent than you.

Nowadays, courts normally expect all the evidence a witness can give on your behalf to be included in a written (or ideally typed) witness statement. This document has to be sent to the other side before trial, at the latest by a date which will be set by the court. This is so the other side can form a view of the strength or weakness of your case on the basis of written evidence.

See Witness statements and Expert evidence for information about witness and expert evidence.

What does it mean?

Admissible - evidence that is allowed to be used in court.

Balance of probabilities - this means that your account and the evidence in support of it is more likely than not to be accurate.

Burden of proof – the obligation on the claimant to prove their claim.

Civil claim – a non-criminal legal case against an individual or a company for compensation and/or to assert a particular legal right.

Claimant – person or organisation who starts the case.

Defendant - person or organisation the case is brought against.

Evidence - information or materials used to prove a party’s case. Liability – Legal responsibility. As a claimant you need to prove that the defendant is liable to you, because the loss you have suffered is their responsibility (for instance before they breached your legal rights or breached a contract with you).

Quantum – the amount of compensation you are legally entitled to claim from the defendant.

Standard of proof – the level of proof the court requires you to prove to support your case, or a bar you need to reach. The standard of proof in a civil claim is the ‘balance of probabilities’ (see above).

Witness statement – a written document containing evidence supporting the claimant’s or the defendant’s case, given by someone with first-hand knowledge of some or all of the facts.

About this guide

The information in this guide applies to England and Wales only. The law may be different if you live in Scotland or Northern Ireland. The law is complicated. We have simplified things in this guide. Please don’t rely on this guide as a complete statement of the law. We recommend you try and get advice from the sources we have suggested.

The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.

This guide was produced by Law for Life's Advicenow project with additional material from Laura Bee. Thanks also to Laura Bee who peer reviewed it. 

Thanks to the Bar Standards Board for funding the creation of this guide.

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