“CHARACTER EVIDENCE” IN CIVIL CASES: NOT ALLOWED (AND NOT MUCH USE ANYWAY)
In Walsh v Greystone Financial Services Ltd  EWHC 1719 (Ch) Mr Justice Nugee made some observations about evidence that was, in part, “character evidence”.
The claimant brought an action seeking damages after being advised to invest in certain film companies for tax purposes. The tax scheme was found to be unlawful and the claimant had faced criminal charges, but was acquitted. He suffered major losses. (The action was unsuccessful).
The judge considered the evidence called by witnesses on behalf of the claimant.
As well as giving evidence himself Mr Walsh served witness statements from a number of other witnesses. None of them was able to give evidence directly bearing on the central issues in the case, and none was in the event required for cross-examination. I can summarise the effect of their evidence quite briefly. I have already referred to Mr Livett who was Mr Walsh’s financial adviser (paragraph 12 above). In addition Mr Walsh served statements from the following:
Mrs Janice Walsh: Mrs Walsh is Mr Walsh’s wife. They have been married since 1988. She gave evidence of Mr Walsh’s lack of organisational skills, for example not opening his post for a couple of months at a time; of his not questioning anything that was said to him by someone he trusted; and of Mr Williams-Denton (whom she met) describing how useless her husband was with paperwork and communication. She also described his arrest and its aftermath and the impact on her and the family. She knew nothing about the detail of his investments though.
Mr Lee Johnson: Mr Johnson is a friend and former colleague of Mr Walsh’s who first met him in about 1997 at Hoare Govett and who worked as one of his senior equity traders until February 2012 when he was made redundant from RBS. He too gave evidence that Mr Walsh was very disorganised, for example being terrible at replying to e-mails. Otherwise his evidence was largely as to Mr Walsh’s character, describing him as hardworking and liked and respected as a boss. He also described him as honest and trustworthy and as having put his complete faith in Mr Williams-Denton but he does not claim to have any detailed knowledge of Mr Walsh’s investments and I do not think he can himself have had any direct knowledge of Mr Walsh’s relations with Mr Williams-Denton.
Mr Robert Sherwood: Mr Sherwood is a racehorse trainer who is a friend of Mr Walsh’s and has trained horses that he owned. His evidence was that Mr Walsh was very trusting as a racehorse owner, allowing Mr Sherwood to operate his racing account without question; and he too referred to Mr Walsh as very disorganised with paperwork and his personal affairs.
Some of this evidence is in effect evidence of good character, and Mr Hardwick QC, who appeared with Mr Burdin for Greystone, took the point that good character evidence is not admissible in civil trials: see Phipson on Evidence (19th edn, 2018) §18-23. That does seem to be the law, although I heard no oral argument on it. Subject to that, in the absence of any cross-examination or suggestion that any of this evidence should be rejected, I accept the general thrust of these witnesses’ evidence. The precise dividing line between good character evidence (for example that Mr Walsh was honest and trustworthy) and factual evidence (for example that Mr Walsh trusted others) may not be entirely easy to determine and was not explored at all in submissions, but I do not think it matters. I accept for example that Mr Walsh was disorganised, and trusting of his advisors, and have borne these points in mind. But the witnesses were not involved in the particular matters with which the trial is concerned and could give no direct evidence of them, and although helpful as confirming certain general points, I have found their evidence of little assistance in resolving the detailed issues which arise.