SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS: A REVIEW OF THE CASES

June 28, 2015 · by · in Civil evidence, Witness statements

In MRH -v- The County Court Sitting at Manchester [2015] EWHC 1795(Admin) considered earlier there was a tantalisingly short reference to similar fact evidence. This was not considered in detail by the Administrative Court, however it does highlight some interesting issues.

THE “SIMILAR FACT” ISSUE IN MRH

  1. In her defence Keoghs referred to 11 other road traffic collisions which occurred between 26th January 2012 and 17th January 2013 which they said had similar modus operandi and other common features. In all of them the claimant vehicles had braked for no good reason leading to the collisions which were the causes of the damage. In 10 of the 11 cases the claimant’s vehicle had braked because a stooge vehicle in front had braked. After the collision the claimants had all used the services of the same recovery company. The claimants’ vehicles were inspected in each case by the same company. Some or all of the claimants in each of the 11 cases were represented by MRH. In each case the claimant drivers were provided with a replacement car on credit hire by Apex or Pennington. It was alleged that all of these collisions had been fraudulently induced to make false insurance claims. The pleading said in terms that “For the avoidance of doubt, no allegations are made against any of the above named companies. Rather it is the use of their services by the various claimants (who have all experienced remarkably similar accident circumstances) that links the 12 collisions.” Ian Toft of Keoghs provided a witness statement giving evidence about these other cases.

  2. On 8th October 2014 the Recorder refused an application to exclude Mr Toft’s evidence. He ruled that it was potentially admissible on the similar fact principle although whether that was indeed the case would have to be examined at the end of the trial.

Somewhat frustratingly, for current purposes, the Recorder’s conclusion on this issue is not discussed. However it is clear that the evidence was considered and admitted.

KEY POINTS

There are, in essence, two stages.

1. A legal test where the court considers whether the proposed evidence is relevant and admissible.

2. A case management test where the court considers the impact of the introduction of the evidence on the case itself and whether its introduction is reasonable and proportional.

It is possible (as happened in Springwell discussed below) for evidence to be relevant and probative but be disallowed because it would make a trial unwieldy and involve disproportionate costs.

3. The other criteria include:-

  • For the evidence to be admissible it must be relevant.
  • If an objective and fair minded person might attach importance to similar fact evidence then the first issue is whether the evidence is probative.
  • The judge then has assess the evidence (assuming it to be true) in the context of the case as a whole.
  • The court must also consider the need for proportionality and expedition; whether the evidence is likely to be relatively uncontroversial and whether its admission will unbalance the trial.
  • The “collateral” evidence should be reasonably conclusive and “not raise a difficult and doubtful controversy of the same kind” as the court has to determine.

SIMILAR FACT EVIDENCE IN RECENT CIVIL CASES

There is a useful review of the law in one of the interlocutory decisions of Mr Justice Warby in Mitchell -v- News Group Newspapers Ltd [2014] EWHC 3590 (QB)

Principles
  1. The controversial evidence relates to incidents other than the one which is at the centre of both actions. It was common ground at the hearing that the relevant principles are those concerned with the admission in civil cases of evidence of “similar facts”, and that those principles are to be found in the decision of the House of Lords in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534. There the House identified a two stage process, holding that the test of admissibility of similar fact evidence in a civil case is one of relevance only; if that test is satisfied the court will consider whether the evidence should be admitted, as a matter of case management.
  2. Lord Bingham said this at [3]-[4]:
“3 Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in R v Kilbourne[1973] AC 729, 756:

“Evidence is relevant if it is logically probative or disprobative of some matter which requires proof … relevant (i e logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.”

4 That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, inquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current inquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon’s sense probative. If so, the evidence is legally admissible. That is the first stage of the inquiry.”
  1. Lord Phillips identified the test of admissibility thus, at [53]: “I would simply apply the test of relevance as the test of admissibility of similar fact evidence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in the action.” On this and other issues Lords Steyn, Rodger and Carswell agreed with Lords Bingham and Phillips.
  2. The main considerations affecting the second, case management stage were identified by Lord Bingham at [5]-[6]:-
“5 The second stage of the inquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge’s assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.
6 While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. This is an argument which has long exercised the courts (see Metropolitan Asylum District Managers v Hill (1882) 47 LT 29, 31, per Lord O’Hagan) and it is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. It is, I think, recognition of these problems which has prompted courts in the past to resist the admission of such evidence, sometimes (as, perhaps, in R v Boardman [1975] AC 421) propounding somewhat unprincipled tests for its admission. But the present case vividly illustrates how real these burdens may be. In deciding whether evidence in a given case should be admitted the judge’s overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.”

SIMILAR FACT EVIDENCE IN CLINICAL NEGLIGENCE CASES

In Laughton -v- Shalaby [2014] EWCA Civ 1450 the Court of Appeal considered the issue of whether evidence of incompetence in other cases should be admitted in a claim for clinical negligence
INCOMPETENCE IN OTHER CASES
(C) Incompetence in other cases?
  1. Evidence of incompetence in other cases is highly problematic. First, is it admissible at all? It is only admissible if it is relevant. Traditionally it is only “similar fact” evidence that is relevant and admissible to issues in legal proceedings, see O’Brien v Chief Constable of South Wales Police [2005] 2 A.C. 534. In criminal proceedings it is now provided by s. 101(1)(d) of the Criminal Justice Act 2003 that evidence of a defendant’s bad character is admissible if it is relevant to an important
“matter in issue between the defendant and the prosecution.”
S. 103(1)(a) then provides that such matters include
“the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of an offence.”
  1. Mr Yell submitted that there should now be a somewhat similar principle in civil proceedings and formulated the proposition that “evidence of systemic failure of various types of incompetence is admissible in professional negligence cases as enabling a judge to make inferences of negligence in a particular case.” This proposition goes well beyond the statutory provisions of the criminal law. For my part, I would not accept that Mr Yell’s proposed principle represents the law; nor would I accept that the criminal law position applies to civil proceedings, since the criminal law represents a statutory change to the common law. In my judgment evidence of extraneous matters should be confined to cases of similar fact for the traditional reason that, unless the evidence is similar fact evidence, it is not probative of the issue to be determined. The question whether extraneous evidence is truly similar fact evidence is, no doubt, one of some difficulty and it may be that courts are now readier to admit evidence as being similar fact evidence than they were in the past. But that should still be the test. It will also be recalled, as stated in O’Brien that, even if similar fact evidence is admissible as a matter of law, the trial judge will still have a discretion to decide whether it is actually to be adduced at the trial, especially if it is likely to open up complex collateral issues.
  2. So much for the technical legal position in relation to other cases of supposed incompetence.But this court has to recognise that a roving cross-examination into other cases puts a trial judge into particular difficulty. Mr Yell had not sought to adduce positive evidence of other incompetence as part of the claimant’s case but he did seek to rely on documents which the defendant had, reluctantly, disclosed. Even these documents did not (technically) prove themselves but Mr Shalaby did not, of course, deny that they existed. There were for example letters of complaint from patients (which he accepted did exist) but he did not agree that he had been negligent with regard to those patients and Mr Yell did not seek to prove that he had been. The same was true of criticisms made by the Health Care Commission. The judge dealt with them pithily and correctly in para 49 of his judgment:-
“The evidence of complaints is not probative. It is merely evidence of complaints.”
  1. Mr Yell also sought to rely on the report of Mr Miller who had been asked by the GMC in 2011 and 2012 to investigate Mr Shalaby’s treatment of 7 patients including the claimant Mrs Laughton. Mr Shalaby had performed two knee operations, two foot operations, one wrist operation and two hip replacement operations, on those patients. Mr Miller concluded his report by saying:-
“I would sum up Mr Shalaby’s care as being below the standard and on occasion falling seriously below the standard expected of a reasonably competent orthopaedic surgeon.”
This is, of course, a damning general comment but, of itself, cannot prove that Mr Shalaby was negligent in Mrs Laughton’s operation. This is all the more so since Dr Miller’s comment on Mrs Laughton’s surgery was:-
“From the information before me, this patient was unlucky to suffer a detachment of the anterior gluteal flap, but, if this represents an isolated instance, this does not constitute negligence or necessarily poor performance by the surgeon involved.
I believe this to be a complication suffered by most if not all hip surgeons and I do not believe it causes the surgeon to fall below the standard of a reasonably skilful surgeon. If however it was found that a high percentage of his hip replacements suffered this complication, my conclusion would be different.”
  1. It was not found that any percentage of Mr Shalaby’s previous hip replacements suffered the complication of a gluteal detachment and the GMC did not pursue the case of Mrs Laughton any further. Mr Miller’s view gave credence to Professor Clarke’s expert evidence and no doubt helped the judge to decide to prefer that evidence to that of Mr Morrison.
  2. It is thus not open to Mr Yell to rely on the generalised comment of Mr Miller , set out in the first quotation in para 24 above, as showing that Mr Shalaby performed Mrs Laughton’s operation negligently unless he can point to other cases which could constitute similar fact evidence. This is, in my judgment, impossible for him to do. Knee, foot and wrist operation were too far removed on their facts from a hip replacement operations to constitute such evidence. The only other hip replacement considered by Mr Miller (patient EL) was criticised for insufficient discussion with the patient which again can hardly be considered to be evidence of similar fact.
  3. In the light of Mr Miller’s report (and perhaps other matters) the GMC convened a Fitness to Practice Panel between 14th-24th October 2013. It found proved various allegations in relation to the patient on whom Mr Shalaby had performed the wrist operation and recorded Mr Shalaby’s admission that on 3 occasions he had not recorded discussions with a patient and a failure to send a neuroma for histology following excision. The panel did not consider this last matter to be misconduct but did consider that Mr Shalaby’s failures in relation to the wrist operation and his poor record keeping constituted misconduct and that his fitness to practice was impaired. The panel then decided to impose conditions on Mr Shalaby’s registration for a period of 18 months (with immediate effect) even though Mr Shalaby had not practised since the original complaint made to the GMC.
  4. Mr Yell sought to adduce this Fitness to Practice Panel decision of 24th October 2013 as new evidence on this appeal. It was not available at the trial but if it had been no doubt the judge would have allowed Mr Yell to rely on it for what it was worth. In my judgment, it would only be worth anything if it disclosed similar fact evidence relevant to the existence of negligence in Mrs Laughton’s operation. It does not disclose such similar fact evidence and, as such, could not have had any effect on the trial judge’s decision. The difficulty about excluding it is that one cannot form a view as to its evidential worth without reading it in detail. I would, therefore, formally permit Mr Yell to adduce it but decide that it in fact adds nothing of any persuasive weight to his appeal.
  1. Lord Phillips’ approach was similar. At [54]-[56] he identified considerations which the court would need to have in mind in deciding whether as a matter of discretion to admit evidence or cross-examination as to collateral issues. These included the need for proportionality and expedition, whether the evidence is likely to be relatively uncontroversial, and whether its admission is likely to create side issues that unbalance the trial and make it harder to see the wood for the trees. He added that the judge would have well in mind the considerations which concerned the House of Lords inMetropolitan Asylum District Managers v Hill 47 LT 29.
  2. In that case, as pointed out by Lord Phillips at [44]-[45], the House had expressed concern at the prospect that the admission of evidence of collateral facts might prevent trials from being kept within a practical and manageable compass. With this concern in mind, Lord Watson had proposed that two conditions would need to be satisfied before collateral facts should be admitted as evidence to prove a matter in dispute. The first was that the collateral fact would “when established be capable of affording a reasonable presumption or inference as to the matter in dispute“. The second was that the evidence should be “reasonably conclusive [as to the collateral fact] and will not raise a difficult and doubtful controversy of precisely the same kind as that which the jury have to determine”.
  3. Mr Price placed considerable emphasis on these two conditions in his submissions. I accept of course that the probative value of the alleged collateral facts and the likely nature, scope and outcome of any dispute about them are important considerations, when making case management decisions. I do not consider, however, that these passages from the speech of Lord Watson are to be treated as if they were in a statute or represent rigid rules governing the exercise of the discretion to admit evidence of relevant collateral facts. As Lord Phillips observed in O’Brien at [46], what Lord Watson was doing in this passage was “contemplating that the trial judge would have a discretion to shut out evidence of collateral facts in the interests of keeping the trial manageable. He was not propounding an inflexible rule of admissibility.”

OTHER CIVIL CASES

In Gulati -v- MGN [2013] EWHC 3392 (Ch) Mr Justice Mann refused an application to strike out particulars of claim which referred to other cases of phone hacking. The defendant applied to strike out pleadings which referred to other incidents.

  1. The first head gathers together complaints which are essentially complaints about relevance and admissibility – this encapsulates matters (i), (v), (ix), (xi), and (xii). This head depends on looking at the quality of the material and, in essence, saying that the facts pleaded add nothing relevant or probative to the particular claims of the claimants. In particular it is said that the pleading of a general pattern of behaviour is of no relevance when assessing whether phone hacking occurred in the particular cases. In those cases the court will be faced with an inquiry as to what actually happenedin those cases, and whether the source of the stories of which complaint is made was phone messages left on the claimants’ phones or some other source. What might or might not have happened in other instances is irrelevant to that.
  2. I disagree with that analysis. This is a point about similar fact evidence. In O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534 the House of Lords considered the admissibility of material described as similar fact evidence in that it was instances of improper behaviour on the part of police officers said to be similar to the actual behaviour of which complaint was actually made. There are plain parallels with paragraph 5 in the present case. Lord Bingham considered similar fact evidence generally and said:
“4. That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, enquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which is an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole and desirable that the process of judicial decision-making on issues of fact should not diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon’s sense probative. If so, the evidence is legally admissible. That is the first stage of the enquiry.
5. The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. …”
He goes on to consider various case management-related matters which might go to allowing or rejecting the evidence. At paragraph 52 he rejected the idea that in civil litigation there should be any test based on whether the evidence is sufficiently probative (applicable in criminal proceedings) and at paragraph 53 said:
“To do so [ie to apply the “sufficiently probative” test] would build into our civil procedure an inflexibility which is inappropriate and undesirable. I would simply apply the test of relevance as the test of admissibility of similar fact evidence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in the action.”
Those are the principles which are applicable to the present case.
  1. Applying them to the criticisms that are made of paragraph 5, and viewing the pleadings as relating to evidence that would in due course be sought to be led, it is immediately clear that the criticisms are, on the whole, ill-founded. Many of the criticised paragraphs relate to matters which are plainly capable of being relevant to the particular hacking claims relied on by the individual claimants. Most of the sub-paragraphs are references to the knowledge in the industry (and some in Mirror Group titles) of the ability and propensity to hack phones, some sub-paragraphs actually referring to listening to messages. Indications by an editor that that has gone on in some cases would seem to me to be relevant to a claim that it had gone on in different case. Any “rational, objective and fair-minded person” might come to the conclusion that it is relevant to any particular cases that this sort of conduct has gone on in relation to others. It does not prove it in any particular cases, of course, but it would be wrong to exclude evidence of those similar fact matters (which is in substance what Mr Browne invites me to do), at least at this stage in the action.
  2. Weight is, of course, a different matter. So is case management of the issue. One point touched on in argument was how disclosure was to be handled in the face of broad-based allegations of phone hacking in a lot of other cases. That is an important point. For example, at first blush it would seem to be excessive to order disclosure in relation to all stories about private lives of celebrities to see how many involved phone hacking sources. Some controls would have to be put on that exercise. But that is a case management issue, not a relevance or admissibility issue.
  3. The attack based on the evidence being inadmissible similar fact evidence therefore fails.”

CASE CAN BE INFERRED

In Silversafe -v- Hood [2006] EWHC 1849 (Ch) Peter Smith J considered an application to strike out a case based on the assertion that the defendants’ participation in similar VAT fraud meant it could be inferred that they aware of the fraud in the current case.  The defendants objected to the particulars being amended to plead these “collateral issue”.

THE JUDGMENT

  1. This is precisely the position now in my opinion. I do not see how the Claimants can plead the case in any other way at this stage. They have quite clearly identified other matters which they wish to rely upon in advance of the trial.
  2. The reference to other transactions not involving the Company is challenged by Tattershall. First, it is said that the case advanced in paragraph 28 is materially identical to an analysis which, when advanced before the VAT tribunal, was dismissed as “wholly improbable” see Deluni Mobile Ltd(decision no 19301) released 24th October 2005. I do not with respect see how a decision of a VAT tribunal in a different case, albeit superficially the same factually, has any impact on the present case. It is a matter in my view for the trial.
  3. Equally in my view it would not be appropriate to strike out the similar fact evidence at this stage. The question of its probative value is really a matter for the trial Judge. It is always dangerous to make a pre-emptive decision as to the admissibility or probative value of any evidence in advance of trial when the full picture is not presented. For my part however the evidence arguably satisfies the test set out in  O’Brien  v  Chief Constable  of  South Wales  [2005] 2 AC 534. It arguably has a probative value and I do not believe that reliance on the similar fact evidence is disproportionately oppressive and will lengthen the trial. I should stress that I do not rule out a fresh application by the Defendants when the full picture is known. By that I mean that any application in respect of these matters ought to take place after the Claimants have provided disclosure, Tattershall has provided disclosure and the overall structure of the Claims is re-evaluated in the light of all material then available. At this stage however I think to remove it from the Claimants might cause an injustice to the Claimant which is wholly disproportionate compared with the inconvenience Tattershall might suffer in dealing with these items. One must balance not only the injustice caused to people against whom claims are brought but also decisions made that might affect the ability of a party to bring a claim.
  4. I should say in this context for completeness that I was referred to the Court of Appeal decision in JP Morgan Chase Bank & Ors v Springwell Navigation Corporation [2005] EWCA Civ 1602. That too concerned an attempt to use similar fact evidence. I do not derive any assistance from that case. Like the decision before me it was a case management issue. I do not see how a decision of one case on case management issues can have any significance on a completely different, separate case considering its own case management issues.
  5. Finally I should observe that Tattershall has adduced no evidence to show that the pleading will be oppressive; it merely asserts it relying on these unconnected instances as shown by the JP Morgan case.
  6. I do not regard the similar fact matters sought to be introduced by the Claimants as creating disproportionate side issues.

THE SPRINGWELL CASE

The Springwell case P Morgan Chase Bank & Ors v Springwell Navigation Corporation [2005] EWCA Civ 1602.  involved an appeal against a decision to strike out paragraphs of a defence and counterclaim.  The judge at first instance refused  to permit the defendants to rely on similar fact evidence because she did not consider that it would have been logically probative of any of the issues in the case and, alternatively, because she was not willing to allow such slight probative value as the evidence might possess to outweigh the serious practical consequences and disruption which would follow if it were admitted.

The defendants attempted to rely on the investing practices of other Greek families as evidence of the claimant’s practices.  This was disallowed by the judge. Her decision was upheld by the Court of Appeal but on slightly different grounsd.

  1. We turn, then, to our conclusions. In our judgment the judge took too stringent a view of the first issue (the relevance of the similar fact evidence). Although she never stated exactly what test she was applying, she appeared to require that the evidence should be of itself, and standing alone, probative of the nature of the relationship between Springwell and Chase. For instance, she said (at para 38 of her judgment) that
“the facts and circumstances of the other Greek families and the intricacies of their commercial relationship with Chase are unlikely, in the circumstances of this case, to be logically probative of whether or not such a relationship existed between Springwell and Chase”
  1. That puts the test for the relevance of any evidence, and conspicuously for the relevance of similar fact evidence, far too high. Cross & Tapper,Evidence (9th edition), p55, suggest that as a definition of relevance it is not possible to improve on article 1 of Stephen’s Digest:
“any two facts to which [the term] is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other [emphasis supplied]”
  1. A fact may therefore be probative either on its own or because it renders a conclusion more likely when taken in conjunction with other facts. The latter is essentially the role of similar fact evidence. The relationship of Chase with the other Greek families, taken on its own, clearly cannot prove anything about the relationship between Springwell and Chase. But it might explain, illuminate or put in context evidence about that latter relationship that would otherwise be ambiguous or difficult to understand.
  2. We would therefore hold, differing from the judge, that the evidence of Chase’s dealings with other Greek families is, depending on its content, potentially relevant to the contested issues in relation to the dealings between Springwell and Chase, and thus passes the first test for admissibility.
  3. That said, however, we would not wish to make too much of the assistance that the court is likely to obtain from the similar fact evidence. There is already an abundance, it might be said a superabundance, of evidence about the actual dealings between Springwell and Chase, from which it ought to be possible to draw conclusions about the nature of the relationship and the role of Mr Atkinson. If that evidence taken on its own yields a clear answer, one way or the other, then the evidence about other families would be irrelevant. The similar fact evidence will only assist the court if the primary evidence leaves the court in doubt, but by contrast with the primary evidence clear conclusions can be drawn from the experience of the other families that can be safely relied on as undermining claims made as to the implications of the direct evidence of the dealings between Springwell and Chase.
  4. It may be worth observing, moreover, that a case of the present type is essentially different from cases in which similar fact evidence is more usually deployed, a recent and conspicuous example being O’Brien v Chief Constable [2005] UKHL 26. There, the claimants’ case was unusual, largely depended on oral testimony, and made allegations of a gravity that needed to be clearly proved: see per Lord Bingham of Cornhill at para 6. That the same people had done the same things on other occasions was plainly a cogent, and probably a necessary, matter to offset what might otherwise simply have been seen as the unsupported implausibility of the claimant’s allegations. But in our case the transaction under investigation, whichever of the disputed forms it took, was an orthodox and not in any way unusual commercial transaction, supported by a wealth of documentary record. What is likely to be added by similar fact evidence is thus much less obvious.
  5. The judge having approached the matter on an incorrect basis, it falls to this court to take the decision afresh. We appreciate that the judge herself performed that task, on the assumption that she was wrong on her first point; but she did so (see para 40 of her judgment) on the basis that even if the similar fact evidence had some probative value that value would be “extremely slight”. For the reasons set out above, that was a misappreciation, and one which affected her approach to the second limb of the admissibility issue. Accordingly, and although the latter is, as the judge said, essentially a case management issue, this court must consider for itself whether the evidence, although relevant and potentially probative, should nonetheless not be admitted.
  6. The basic difficulty is that the nature of the relationship between Chase and the other Greek families is likely to be as controversial, and to have taken the same form, whatever it was, as that between Chase and Springwell. To identify matters within those relationships that might play the role suggested in para 75 above could, it was argued by Chase, take as much time as investigation of the principal case. Chase said that this was a classic example of the extension of the trial; distraction of the decision-maker; and overburdening of the parties; that is frequently relied on as a reason for not admitting similar fact evidence.
  7. Much of this Springwell found it difficult to gainsay. Mr Brindle however suggested, as we have described, that any such difficulties could be met by a significant limitation on the evidence that was sought to be called. That would be limited not only in the terms of the proposed amended paras 190-193 of the pleading, and to three or even two other Greek families, but also would be limited to evidence about the terms in which Mr Atkinson was introduced to those other Greek families, and what he had said to them about investments in Russia and in GKO-linked notes when he introduced those products to them.
  8. The difficulty about that limitation is that pointed out by Mr Hapgood. Chase does not, and cannot be expected to, accept at face value claims by other Greek families about the (oral) terms in which Mr Atkinson was introduced to them, any more than it accepts those same claims made by Mr Polemis. Just as in the case of Springwell the undocumented claims have to be tested by a detailed inspection of the way in which the relationship was in fact pursued, so would Chase be entitled to a similar investigation of similar claims made by or on behalf of the other Greek families. It was simply unfair for Springwell by limiting its own case to seek to limit what Chase might, relevantly, adduce in answer. And the relevant conversations occurred between about ten and 18 years ago, with all the evidential problems to which the lapse of time inevitably gives rise.
  9. We see no answer to that objection, which we are satisfied is not advanced simply for forensic reasons. At best, there must be a high level of uncertainty before the court has descended into the actual trial as to how far it will prove to be necessary and reasonable for Chase to test the Greek families’ evidence by further exploration of the relationship in the light of the e-mail evidence and the transcripts. If Chase wished to take that course, and it was clear that the exploration would be relevant, and was not being proposed simply to obstruct the trial, then we do not see how the judge could fairly limit it. And those considerations are, it seems to us, the more pressing when a party seeks to meet a case that is put against him. It is one thing to say to a party that he may not adduce similar fact evidence in the first place, because of the uncertainty and waste of judicial time that it may cause. It is quite another to say to his opponent that the evidence may be adduced, but for those reasons he is to be limited in what he can say in answer.
  10. All this threatens either to overburden the trial or, if steps are taken that are directed simply to avoiding that burden, to deprive Chase of effective scrutiny of the case put against it. Neither outcome is acceptable. There is in the end an unavoidable choice to be made between trying one case – the present one – and trying three.
  11. We therefore dismiss the appeal and uphold the judge’s order, albeit for reasons somewhat different from those that she herself gave.”

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