'Best evidence' rule laid to rest

United Kingdom

A recent case in the Court of Appeal has confirmed that the "best evidence" rule no longer exists and that the judge at first instance had been right to admit secondary evidence of certain documents on the basis of a reasonable explanation as to why the originals were not available.

The "best evidence" rule states that a party must produce the best evidence which the nature of the case will permit. In cases involving documents, the "best evidence" of a document will be the original document itself. There will, however, be instances where documents have been lost or destroyed, in which case it will be necessary to prove their contents by some other means.

In Masquerade Music Ltd & ors v Springsteen(Court of Appeal, 10 April 2001;) Bruce Springsteen, the composer and singer, claimed damages and injunctive relief against the Masquerade in relation to their activities in manufacturing, importing and supplying CDs containing recordings of his performances in the 1970s. He alleged that Masquerade had infringed his musical and literary copyrights in the songs and his copyrights in the sound recordings. The judge held that Mr Springsteen had title to the musical and literary copyrights in the songs and to the copyrights of most of the sound recordings and that Masquerade did not know but had reason to believe that the CDs which they had imported were infringing copies. An injunction was granted and an inquiry directed as to damages.

In proving his title Mr Springsteen had relied on assignments of the copyrights in 1972 from certain partnerships to certain limited companies. Section 36(2) of the Copyright Act 1956 required those assignments to be in writing and signed on behalf of the partnerships. The original assignments could not be found so evidence was called from the lawyer who had effected the transfer of the copyrights and of one of the partners to the effect that the necessary assignments were contained in the certain company minutes.

Although this was clearly not the "best evidence" which could possibly have been given of the assignments, the judge held that such secondary evidence of the terms of the assignments was admissible on the basis that a "reasonably thorough" search had been conducted and that Mr Springsteen could not produce the originals "without difficulty".

The defendants appealed, contending that Mr Springsteen and his advisers had done very little in the way of searching for the minutes, and that such search as was made on his behalf was very far from being exhaustive and could not even be described as "reasonably thorough". They argued that the judge was therefore wrong to admit the secondary evidence of the contents of the minutes.

Jonathan Parker LJ canvassed the arguments made by both parties and held, at para 84:

"In my judgment, the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired. In every case where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence. Where the party seeking to adduce the secondary evidence could readily produce the document, it may be expected that (absent some special circumstances) the court will decline to admit the secondary evidence on the ground that it is worthless. At the other extreme, where the party seeking to adduce the secondary evidence genuinely cannot produce the document, it may be expected that (absent some special circumstances) the court will admit the secondary evidence and attach such weight to it as it considers appropriate in all the circumstances. In cases falling between those two extremes, it is for the court to make a judgment as to whether in all the circumstances any weight should be attached to the secondary evidence. Thus, the "admissibility" of secondary evidence of the contents of documents is, in my judgment, entirely dependent upon whether or not any weight is to be attached to that evidence. And whether or not any weight is to be attached to such secondary evidence is a matter for the court to decide, taking into account all the circumstances of the particular case."

This case therefore confirms that the "best evidence" rule no longer exists, but this does not mean that documents need not be kept safely. The courts will still examine the reasons given for a party's failure to produce original documents where those ought realistically to be available, and will weigh secondary evidence of their contents accordingly.

For further information, please contact Susan Poffley by e-mail at susan.poffley@cms-cmck.com or by telephone on +44 (0)20 7367 2592.