Report No. 69
Exclusion of Oral Evidence-in Substitution for Documentary Evidence
42.1. Two species of evidence-oral and documentary-have been the subject-matter of elaborate discussion so far (particularly documentary evidence), and we have already considered the relevant statutory provisions in detail. Now, since a fact can be proved, inter alia by either oral or documentary evidence, and since often, in respect of that fact, both oral and documentary evidence can.- at least in theory,-exist, the question naturally arises whether both the types of evidence can be produced to prove the fact. In the absence of statutory provisions to the contrary, there would obviously be no bar to such a course being adopted, because, once a fact is relevant, then, as section 5 enacts, "evidence" may be given, and "evidence", as defined in the Act includes oral as well as documentary evidence.
This would be the theoretical consequence of section.-but only in the absence of specific provisions. It is obvious that if such a situation were allowed to prevail in relation to documents, there would be confusion, and what would be described loosely as the question of "competition" between oral and documentary evidence may arise. Which species of evidence is to be preferred, and to what extent?
42.2. Specific provisions are laid down to deal with the matter, in Chapter 6. The Chapter deals with "competition" between the two species of evidence. In more expressive language, one may describe the topic dealt with in the Chapter as inter-relationship between oral and documentary evidence. Can only documentary evidence be given? If documentary evidence is given, can other evidence override it? These and other related matters form the subject-matter of the Chapter.
42.3. Extrinsic evidence.-
In England, this topic is described as relating to the "admissibility of extrinsic evidence as affecting documents". It has been described1 as a branch of the law of evidence which is, perhaps, of all branches, the most difficult of application. The contents of a document are proved by the production of the original, or where secondary evidence is permissible, by secondary evidence.2 But, where the question is not primarily as to the contents of a document but as to the existence of matters of fact of which a document forms the record and proof, other considerations come into play. Two questions3 then arise, namely-
(i) whether the fact that the document forms the records and proof, excludes other evidence of matters which are so recorded; and
(ii) to what extent the matters so recorded can be affected by other evidence.
2. For brevity, "document" in the following discussion will include secondary evidence.
42.4. The law shows considerable preference for documentary evidence. In Best evidence rule modern times, the rule is explained as one of "best evidence". It has long been recognised that the best evidence in the possession of a party must be given; the principal application of this rule is to private documents. When the transaction to be proved is primarily evidenced by writing, the writing must be produced or accounted for. It would be improper for the court to rely upon a possibly imperfect copy of an original when the original itself can be produced. or to accept the recollection of a witness, which may be faulty as to the contents of a document when the document can itself be referred to.1 For the same reason. when a preliminary written agreement is followed by an agreement which has superseded the written agreement, the deed must itself be produced.2
1. Permanent Trustee Company of New South Wales v. Fels, 1918 AC 879 (PC).
2. Williams v. Morgan, (1850) 15 QB 782.
The rule prohibiting evidence in substitution of documents-usually known as the parole evidence rule, and more accurately described as the rule excluding extrinsic evidence-has an interesting history. Phipson1 refers to the early German procedure when a legal system of formal oral transactions prevailed. At that time, the document was not exclusive or conclusive in effect; but the rise of the seal marked a new era for documents. Originally, it was probably only the king who had a seal. His seal was indisputable.
The analogy worked downwards, and the sealed writing tended to be the contractual act itself and not a mere testimonial device.2 With the development of the seal, there evolved a distinction based on grades of evidence, namely, a matter of "record" was higher than the deed and records and deeds were higher than an averment. For example, the decrees of courts of records were not only exclusive evidence of their own existence, admitting of no alternative proof, but were also conclusive, admitting of no contradiction.
1. Phipson Evidence, (1963), p. 710, para. 1072.
2. Phipson Evidence, (1963), p. 710, para. 1072.
42.6. The same principles were taking effect in relation to deeds. For example, a bond (an instrument introduced by the Lombard bankers) would be the exclusive evidence of the debt, and the creditor might not prove the debt by parole. This was the aspect of exclusive evidence. Then, a deed could not be annulled or altered except by deed. This was the aspect of conclusive evidence. The dispositive, as opposed to the testimonial, character of a written instrument, was further emphasised by the statute of frauds. The exclusive aspect of deeds under seal now became extended to documents under signature. Similarly, the conclusive aspect of deeds began to be extended to unsealed writings.
The best evidence rule does not, however, apply to chattles. For example, when the question concerns the quality of the bulk of goods to a sample the chattle need not be produced.1
1. Hockin v. Ahlquist, (1944) 1 KB 120: (1943) 2 All ER 722 (724).
42.8. In Hockin's case1the respondents were charged with breaches of the statutory order issued during the war time regulating the making of civilian clothing, the charge being that they manufactured garments with more pockets and buttons than the Order allowed. Evidence was given by the officer of the Board of Trade that he had inspected the particular articles referred to in the charge, and had found that the articles did not comply with the regulations. It was contended by the respondents that the clothing which was alleged to infringe the regulations should have been produced. It was held that the production of the clothing was unnecessary.
1. Hockin v. Ahlquist Brothers, (1943) 2 All Eng Reports 722.
42.9. Amongst the cases relied on was an earlier one1, where damages were claimed for the infringement of copyright in a picture, and it was held that evidence given by a party who said that he had seen the picture was admissible, and that it was evidence for the jury that the photography sold by the defendants was a copy of the original picture; and the Court of Appeal observed that it was not necessary for the plaintiff to produce the original picture. The following dicta of Lord Esher M.R. in the Court of appeal are pertinent:-
"Different kinds of evidence may be used to prove the same fact, and this is another way of proving the fact that the picture which the defendants sold is a copy of the original picture in respect of which there is copyright. If the jury were not satisfied, it would be open to them to say: 'you could have produced better evidence-.
1. Lucus v. Williams & Sons, (1892) 2 QB 113 (116) (CA).
II. Dispositive and other Documents
42.10. Dispositive and other documents.-
In this connection, it is necessary to distinguish between dispositive documents and others. The importance of the distinction has been pointed out by Woodroffe,1 and it is of some relevance in appreciating certain controversies pertaining to sections 91-92, which we shall discuss in the due course.
1. Woodroffe, Introduction to Chapter 6 of the Evidence Act.
42.11. "Dispositive" documents are those which are uttered dispositively, that is, for the purpose of disposing of rights. "Non-dispositive", documents are those which are uttered non-dispositively,1 that is, not for the purpose of disposing of rights. In the language of Bentham, the former are "predetermined" documents, while the latter are "casual" documents. In general, non-dispositive or casual documents,.-for example, a letter or a memorandum thrown off hurriedly without intending to create a contract, which is offered not to prove a contract but to establish a non-contractual incident-are peculiarly dependent on extraneous circumstances, and often cannot be explained unless those circumstances are put in evidence. On the other hand, dispositive documents are usually prepared deliberately and are couched in words which are selected for the purpose, because they have a settled legal or business meaning.
42.12. In regard to dispositive documents as well as in regard to matters required by law to be reduced to the form of a document (whether or not these matters be in the nature of dispositions), section 91 enacts that no evidence in proof of the terms shall be given excepting the document itself or secondary evidence thereof when admissible.
42.13. In addition, where the document purports to be final settlement of a previous negotiation or where the matter is required by law to be reduced to writing, it is essential that the documents shall not be varied by words of month, because otherwise the benefit of writing would be lost. This aspect is dealt with in section 92.
42.14. To summarise very briefly the important provisions and approach adopted in this Chapter, while extrinsic evidence is inadmissible to supersede the terms of the document.1 or to control it,2 that is to say, to contradict, vary, add to or subtract from, the terms of the document, extrinsic evidence may yet be admissible in aid of, and to explain, the document3 The principle underlying section 91 is that oral proof cannot be substituted for the written evidence.
1. Section 91.
2. Section 92.
3. Section 92, 6th proviso and sections 93 to 100.