Whether you have been closely watching, or unable to avoid, the news headlines surrounding the on-going trial between Johnny Depp and Amber Heard in Virginia, USA, for the most part, it has not been as cut-throat as many would've expected. However, what has been a feature of proceedings so far is the number of objections made by the lawyers acting for Mr Depp and Ms Heard.

But why have they been shouting "objection", and what does it really mean?

Objections are often made during proceedings to prevent the jury or the judge from hearing evidence that may be inadmissible. Johnny Depp is seeking to recover damages from his former wife, in a civil trial for defamation, and the lawyers for both sides have attempted to have certain parts of the evidence excluded by reason of hearsay.

What is hearsay evidence?

Hearsay evidence is second-hand evidence. It includes information that a witness says they have received from, or heard said by, others out with the court. It is not the direct evidence of what the witness saw or heard themself.

A hearsay objection may be made when the person giving evidence begins to say "she told me…" or "she said that John saw…"

There are well-known and strict hearsay rules in the criminal courts, but what are the rules on hearsay within the civil courts in Scotland?

Hearsay Evidence in a civil case

The Civil Evidence (Scotland) Act 1988 confirmed that evidence should not be excluded simply because it is hearsay. Written statements and reports that are not "spoken to" (referred to by a witness appearing at the hearing) can be used in evidence, as long as the court or jury are satisfied that what is written or said actually happened.

A fact can also be proved through secondary evidence, using the "best evidence" rule. This is explained in Woolley v Akram [2017] SC EDIN 7, "the court should exclude secondary sources of evidence if the primary source is available, unless sufficient failed efforts have been made to obtain the primary source…the court will also consider secondary evidence if there is good reason for the primary evidence not being available.”

Recent examples of hearsay evidence

The most recent civil cases in Scotland, where there have been published judgments, with issues concerning hearsay evidence, have related to disciplinary proceedings taken against professionals such as teachers and nurses, and family actions. In these cases, hearsay evidence has been found to be admissible where it was considered reasonable to allow it, taking account of a wide range of factors including how much weight was to be placed on it, the extent to which that evidence was challenged, and the reasons for the non-attendance of the witness who would be able to speak to the evidence personally.

Some recent cases where hearsay evidence was considered to be admissible include:

  • M v General Teaching Council for Scotland [2020] CSIH 42 – hearsay evidence was allowed to be used by the 'fitness to teach' panel as it had given clear and specific reasons as to why it was used, and this was noted in its decision.
  • NM v Children's Reporter [2017] SAC (Civ) 37 – a Children's Reporter was entitled to use hearsay evidence where it was held that there were sufficient counter-balancing factors to allow a fair assessment of such evidence.
  • Ellison v Inspirations East Ltd 2003 S.L.T. 291 – it was found to be against the public good and discriminatory against those who speak English as a second language not to allow a statement as hearsay evidence even though it had been prepared by an interpreter.

However, hearsay evidence is not always admissible. In a Scottish defamation case (with perhaps a slightly lower profile than Depp v Heard) at Inverness Sheriff Court in 2010 (Karen Sinclair or Fraser v Catherine Fraser), a passage from the Sheriff's judgment perfectly illustrated the rationale for the court's reluctance to accept hearsay evidence; "The pursuer gave evidence to the effect that Freda Murray had passed on to her that the defender had said that her son had been at a family party and had heard the topic discussed openly."


Hearsay or secondary evidence can be admissible in civil litigation in Scotland, but its acceptance by the court is likely to be dependent on a variety of factors. Even if it is allowed to be heard, objection can be made to hearsay evidence being relied on and the court may exclude it from consideration or limit the support that it gives the case of the party who relies on it. As a general rule, first-hand or primary evidence is preferred. As always, hearsay evidence will be judged on a case-by-case basis.


Lucy Duff

Senior Solicitor

Eve Gilchrist