In a U.K. opposition, your adversary files in evidence letters addressed "To Whom It May Concern." The letters were clearly solicited for the proceedings and you suspect that they were drafted by your adversary's advisors, and are not the authors' own words. Do the IPO's hearsay rules offer an effective way to challenge admissibility or weight?
The admissibility and status of such letters were the focus of a recent decision by the Appointed Person in an appeal on a revocation matter (DUCCIO Trademark, BL O343-09). As a result, the IPO issued a notice clarifying its practice in relation to hearsay evidence and giving useful guidance for those who have to rely on it, assess its weight, or seek to draw out its weaknesses.
"To Whom It May Concern" Letters
In DUCCIO, the registered proprietor sought to rely on four letters addressed "To Whom It May Concern" that had clearly been solicited for the proceedings. These letters were hearsay, since the authors did not give direct evidence in the form of a witness statement, statutory declaration or affidavit. Under Rule 64 (1) (a) and (b) TMR 2008, evidence in IPO proceedings may be given by way of witness statement, statutory declaration or affidavit, or in any other form that would be admissible as evidence before the court.
Under S. 1 of the Civil Evidence Act 1995, hearsay evidence is admissible before the court. S. 4 CEA 1995 sets out various considerations relevant to assessing its weight, though, including whether the maker of the statement could reasonably and practicably have been called as a witness, how contemporaneous the hearsay was to the relevant matters, whether there was multiple hearsay, whether there was any motive to conceal or misrepresent, whether the hearsay statement was edited or made in collaboration or for a particular purpose, and whether circumstances suggested an attempt to prevent proper evaluation of its weight.
The IPO's practice on the admissibility and weighting of hearsay evidence in the form of "To Whom It May Concern" letters was set out in Tribunal Practice Notice 1/2008. Despite its acknowledgment of the provisions of the CEA, the TPN invited the conclusion that such evidence, was in general, to be accorded little weight because of the lack of attestation.
At first instance in DUCCIO, the hearing officer made some general observations about the "To Whom It May Concern" letters without making it clear exactly what weight he was according to them. Consequently, on appeal, the Appointed Person decided (for this and other reasons) to remit the case back to a different hearing officer for reconsideration.
The Practice, Amended
The Appointed Person also took the opportunity, however, to comment on the ambiguity of TPN 1/2008 and on the fact that hearsay evidence should, in line with the practice of the courts, be weighed in the context of the evidence as a whole. As a result, the IPO re-issued its TPN under new number 5/2009, clarifying this. The new practice listed the relevant considerations from the CEA for determining the weight to accord to such evidence, but added some further specific guidance on "To Whom It May Concern" letters.
In particular, the TPN states that such letters can be filed as attachments to witness statements, statutory declarations or affidavits by the authors of the letters, in which case the letters are no longer hearsay, but rather direct evidence. Alternatively, they can be filed as attachments to witness statements, statutory declarations or affidavits by the party seeking to rely on them, in which case they will be hearsay.
Where such letters are filed as hearsay, the IPO will assess their weight based on the factors set out in S. 4 CEA 1995, and the weight accorded will not be reduced simply because the evidence is hearsay. However, it may be reduced if, for example, the statement was made some time after the relevant event, when the same statement made in a signed witness statement, statutory declaration or affidavit would have been given more weight. Indeed, some hearsay statements may be given no weight at all if, for example, there is reason to suspect a motive to conceal or misrepresent matters.
The TPN advises parties to ensure that all evidence on which they rely is as far as possible direct evidence in attested form to ensure that it is accorded the weight that the party relying on it considers it to deserve.
Although DUCCIO included a direct criticism of the hearing officer's failure to consider the "To Whom It May Concern" letters in the overall context of the evidence, the need to do that should go without saying. For example, it is a relevant question whether the hearsay letters are supported by other evidence, and if they are they should be accorded greater weight.
The new TPN does, however, helpfully confirm that such letters remain admissible hearsay when filed as attachments to a witness statement, statutory declaration or affidavit made by the party relying on them, and clarifies the approach to assessing their weight by reference to the S. 4 CEA factors.
Such letters are never ideal as evidence and when they are filed, it is often because the party relying on them is unadvised or cannot persuade the makers of the statements to take part in the proceedings as witnesses. However, such letters are readily spotted as having been created specially for the proceedings, often with the heavy guiding hand of the party or its advisors, and this in itself can be a factor affecting weight if the letter is submitted as hearsay rather than direct evidence. When such letters are in an adversary's arsenal, their credibility may well be open to challenge on this basis.
Drawing out other weaknesses, such as the passage of time between an event and the making of a statement relating to it, any multiple levels of hearsay, and whether in fact the author of the statement could reasonably have given direct evidence as a witness (which will often be the case unless the witness is dead or outside the jurisdiction), are also worthwhile angles at which to chisel.
In cases where a party has no option but to resort to "To Whom It May Concern" letters as evidence, it should ensure that its entire case does not rest on these. Such letters should support, and be supported by, other evidence, and be made by authors who are ostensibly reliable and well-informed about the matter in question, without any obvious motive to conceal or misrepresent the facts. Such letters must, moreover, be filed as attachments to a witness statement, statutory declaration or affidavit by the party relying on it. Even compliance with all of this does not guarantee the same level of persuasiveness as if the evidence were direct, but it does afford the best chance when hearsay must be filed.
Where reluctant trade witnesses or the like are involved, though, the best case will always be by way of direct evidence from known witnesses. The gentle persuasion needed to recruit and retain such witnesses is arguably some of the most useful advocacy of all.