Evidence is information or materals relevant to proving the facts of your case to the court. This may include information that does not 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 is not 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 elses (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 defendent should compensate you for your loss. 

When you take someone to court, 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’.

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’).

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 are 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 will not 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 or disprove a disputed fact. For example, a fault 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 will be sufficient to just submit a photograph of the 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 to blame) or value (how much your case is worth) in your case. If you try and use evidence that is not relevant the court is likely to reject it. You have a duty to tell the other side about relevant evidence, even if it harms your case or supports the defendant’s case. The defendant has an equal duty to tell you about evidence, even if it harms their case or supports yours.

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 was got improperly or illegally. Sometimes the sides in a case may 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.

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 is not disposed of.

Make sure you complete an accident report form or fill in the accident 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 have said and put your own comments in writing to them if it is inaccurate.

If you have an accident elsewhere, get friends to take photographs in case street signs get changed, or potholes are 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 road.

If you have paper evidence such as receipts which are on paper likely to fade, make sure you take photocopies or photographs 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 (see our guide to How to print from your phone). 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, PC, or on the cloud.

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

If you need to prove something and:

• you don’t have any documents to help you, or
• you have documents or real evidence but it needs 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. Witness statements and oral evidence.

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.

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 information or belief is based on.

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.

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 must 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 sides 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. 

 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.

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. (You can find some information about pre-action conduct and protocols - in our guide to the rules about what you need to do before a civil claim.)

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 do not 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 taking them to court simply because they have not 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.

If you are not sure what evidence you will need to support your case, think through the stages:

• What do I need to prove someone else is at fault (what the law calls 'liability')?
• What do I need to prove my losses and expenses (what the law calls 'quantum')?
• What do I need to ask someone else or the defendant to provide me with so that I can prove fault and how much my losses and expenses were?

We can not tell you what evidence you will need to prove your particular case. But we hope that these case studies will help you decide what to collect.

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.

Compensation – usually money that has to be paid to other side to make up for loss, injury, damage or expense.

Defendant - person or organisation the case is brought against.

Directions -  instructions for how a case will be dealt with.

Documentary evidence - written information, which can be paper or digital.

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.

Pre-action protocols - the procedures the court expects you to follow before you start your claim. It gives details about how to behave and what to do. There are specific pre-action protocols for many types of case.

Pre-action protocol stage – the stage before the formal claim is started.

Real evidence – physical evidence also known as ‘tangible evidence’. An object used by one side or the other to try to prove or disprove a fact.

Small claim – these are usually simple claims, up to the value of £10,000.

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).

Trial - the final hearing where a judge hears the evidence and makes a decision. But this only happens if both sides cannot reach an agreement on how to sort out their dispute themselves.

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.

Disclaimer

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 do not 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.

Acknowledgements

This guide was produced by Law for Life's Advicenow project with additional material from Laura Bee. We would like to thank everyone who provided feedback on the guide and especially editorial teams at Thomson Reuters, who kindly peer reviewed this updated version.

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

This version of the guide was updated thanks to funding from the Ministry of Justice.