CIVIL PROCEDURE BACK TO BASICS 61: SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS

This post is caused by a search term that led to this blog “similar fact evidence in civil litigation”.   This would be an apposite time to review the principles relating to similar fact evidence and the relevant case law.

 

OVERVIEW OF THE RELEVANT PRINCIPLES

A detailed review of the cases appears below. By way of summary 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.

BACK TO MITCHELL (BUT DON’T PANIC)

The case of Mitchell -v- News Group Newspapers Ltd  led to a lot of procedural issues being litigated.   However here we are concerned with the judgment of Mr Justice Warby at 2014 EWHC 3590 (QB).

The case has a useful review of the principles relating to similar fact evidence in civil cases.  The court was considering whether evidence could be adduced of Mr Mitchell’s previous conduct.

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.”

  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.”

ADDUCING THE EVIDENCE OF PREVIOUS INCIDENTS IN THE CURRENT CASE

Discussion
  1. Mr Browne submitted that it was a conclusive answer to Mr Mitchell’s application that he had not objected when these matters were first raised in PC Rowland’s Reply on 23 July 2014, and that the matters had also been pleaded by NGN before objection was raised. I did not find that a persuasive submission. It was not said that Mr Mitchell’s delay had caused prejudice to Mr Rowland or NGN, nor does that appear likely. Mr Mitchell’s objection to reliance on evidence of these matters has been expressed since 22 September 2014 when he served his Amended Reply in the NGN action. That was some three weeks before the exchange of witness statements. All the witness statements relied on by NGN and PC Rowland in support of the “similar incidents” were made and served after that. Even if some prejudice had been caused in the form of additional cost that ought not to be a basis for admitting evidence which on a proper analysis is irrelevant, or evidence which it would otherwise be appropriate to exclude as a matter of case management. I therefore considered the merits of the application.
  2. The starting point must be to consider relevance, for which purpose it is necessary to identify “the matter which requires proof“, to use Lord Simon’s words in R v Kilbourne. Mr Price’s submission was that the matter requiring proof is, quite simply, that Mr Mitchell used the “toxic words” attributed to him by PC Rowland.
  3. Whether Mr Mitchell used the “toxic words” is of course central but (assuming the matter is not resolved by expert evidence) that allegation must be considered in its context. To assess whether it is probable that Mr Mitchell spoke those words the court will need to consider the whole sequence of events at the Downing Street gates that evening, and the differences between the competing accounts of Mr Mitchell’s behaviour. There are areas of dispute about the detail that may be important.
  4. NGN’s Defence alleges that Mr Mitchell approached the Downing Street gates identifying himself as Chief Whip and demanded to be allowed to leave through the main gates. He continued to do so when told that according to security rules officers could not open the main gates for cycles, so it is alleged, ignoring requests to comply with the rules. It is said that when PC Rowland approached him he seemed agitated, continued to refuse to comply with requests to leave by the side pedestrian gate, reiterating his status as Chief Whip. He is alleged to have then walked towards the side gate, lost his temper and spoken the “toxic words”, and then left announcing that PC Rowland hadn’t heard the last of it.
  5. Mr Mitchell denies ignoring officers’ requests, or “demanding” to be allowed to cycle out. He says he “simply and politely asked to be allowed to do so” and that he said “please open the gates. I am the Chief Whip; I work here at number 9“. He denies losing his temper, though he does admit to becoming “frustrated at being obstructed” and to swearing about the officers under his breath. He makes no concession that he was angry.
  6. PC Rowland’s case is to the same effect as that of NGN. He adds that throughout the incident he was calm, but Mr Mitchell “appeared agitated and was unjustifiably rude and high-handed” to PC Rowland in particular. A witness summary in respect of one of the other officers at the Downing Street gates that night states that Mr Mitchell was “clearly furious“.
  7. Having identified areas of difference in the rival cases, the next question is whether, in relation to those differences, the “similar incidents” are probative of the case for NGN and PC Rowland. Mr Price’s submission was to the effect set out at 50 and 51 above: that the incidents are equivocal or neutral as between the two versions of events, and take the matter no further than the admission and averment in Mr Mitchell’s Amended Reply. Mr Millar submitted that the incidents are evidence of a propensity or tendency on Mr Mitchell’s part to push at the enforcement of security rules by junior police officers and to react adversely – testily or angrily – and to threaten consequences. Although the degree of anger and the degree of offensiveness were greater on 19 September 2012 than on previous occasions, his reactions bore similarities to his behaviour on previous occasions. To that extent these were incidents of an “apparently similar character” to the incident in issue. He submitted that, looked at as a body of evidence, the evidence of those incidents goes beyond what Mr Mitchell has been prepared to admit and that if established they are potentially probative of the case for NGN and PC Rowland.
  8. I accepted the submissions of Mr Millar, in respect of a majority of the alleged incidents. I asked myself whether the evidence, assuming it provisionally to be true, might lead to the conclusion that events on the evening of 19 September 2012 were more likely to have unfolded in the way alleged by PC Rowland and NGN, rather than as alleged by Mr Mitchell. I concluded that the answer was that it might.
  9. Looked at collectively the evidence of Mr Mitchell’s encounters with police over cycle access at the Palace of Westminster, and cycle entry to and exit from Downing Street portrays a course of dealings in which Mr Mitchell has repeatedly asserted his status, engaged in confrontation, and, on a number of occasions, behaved in a rude and condescending way to police officers. One of the alleged incidents – the one of November 2005 – involves an explicit proclamation that he was too important to stop for the officer, and a direct insult addressed to the officer involved, under minimal if any provocation. The alleged incidents in Africa, if true, might show a hot temper, the use of foul language when provoked, a strong sense of superior status, and a condescending attitude to police officers.
  10. The evidence seemed to me potentially to throw light on Mr Mitchell’s attitude and reaction when impediments are placed in his way by police officers and to show a more complex picture, materially different from Mr Mitchell’s version of events on 19 September 2012 and from the occasional impatience and short temper and very occasional rudeness on other occasions which is admitted to by Mr Mitchell.
  11. There were, however, six allegations that I ruled out as they seemed to me to fall short of the threshold of potential probative value. Allowing for the two alleged incidents which Mr Mitchell accepts are relevant for other reasons, that left nine disputed “similar incidents”, involving some eleven witnesses.
  12. As to the exercise of the discretion to exclude relevant evidence, Mr Price submitted that there was potential for unfairness to Mr Mitchell as he could not remember most of the incidents, and that the probative value of the evidence did not outweigh the unfair prejudice which its admission would cause. He said that the evidence raised collateral issues which could not fairly be resolved with confidence. He conducted a detailed analysis of each alleged incident with a view to illustrating these points.
  13. In the course of his submissions Mr Price invited me to reach conclusions as to the credibility of at least some of the allegations against Mr Mitchell. He submitted, for instance, that the suggestion that Mr Mitchell had said in November 2005 that he was too important to stop for a police officer “simply lacks any credibility“. In relation to the evidence of incidents of 2011 in Africa he submitted that the officer who claims to have witnessed the events “is not a witness on whom the court can rely“.
  14. My conclusion was that the evidence that I found to be relevant should be admitted. I did not consider it appropriate to rule on issues of credibility at the PTR. The evaluation of the evidence is a matter for trial. However, I did not believe the trial would be distorted or unbalanced by the admission of this evidence. The incidents alleged were all relatively brief, and the evidence in support of them quite narrowly confined. The evidence, if properly managed at trial, should not take up a great deal of time.
  15. I did not consider there would be unfair prejudice to Mr Mitchell. He has been able to plead a positive case as to the nature and extent of his adverse reactions to what he perceived as obstruction from police officers. His witness statement addresses specifically the allegations about the November 2005 incident at the Palace of Westminster and about his conduct on the African visits. Mr Price’s submissions showed that he is able on behalf of Mr Mitchell to test much of the evidence by reference to documents. The trial judge can give appropriate weight to the evidence, making due allowance for the passage of time and any restrictions on Mr Mitchell’s ability to challenge what is said. Moreover, Mr Mitchell will be able to rely on the substantial number of witness statements he has obtained and served containing evidence to the effect that he is habitually courteous and respectful towards others, including the police. This is an aspect of the evidence to which I refer further below.

IN A CLINICAL NEGLIGENCE CONTEXT

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.

THE APPEAL

The claimant was appealing a decision that a hip operation had not been carried out negligently.   Part of the claimant’s case related to alleged lack of probity; evidence of the doctor being under stress and allegations of evidence of incompetence in other cases.

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.

MRH

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.

 

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 1602That 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.”

KIMATHI

Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB)

KEY POINTS

  • The witness statements of individuals who stated they had suffered the same experiences as the  test claimants were not excluded.
  • It was not possible for the court, at this stage, to determine the probative value of the supporting witnesses. Therefore it was not appropriate to exclude the evidence.
THE JUDGMENT
Corroborative Witness Statements
  1. In this GLO there are over 40,000 claimants. The order is that 25 should be test claimants. The Claimants’ lawyers wish to call 50 other claimants to give factual evidence. They have provided witness statements which have been served. The Defendant objects to 48 of these witnesses. All these 48 are claimants on the Group Register. The four statements which are not objected to comprise:
(i) Three statements which are directly corroborative of individual test cases. These are statements from Jane Wambui Zakariah, Rebeca Wanjira Mwaura and Eliaph Mutugi.
(ii) Professor Rotberg who gives direct evidence as to document destruction, this being one of the generic issues.
  1. Paragraph 12 of the order of 14 March 2014 provided that the generic issues would be tried in the course of the test cases. Thus the 25 test cases are to be used so as to give judgment in those individual cases on their specific complaints but also to make legal and factual findings on the generic issues; see also Schedule 2 to the order of 14 March 2014.
  2. This proposed evidence could be seen as similar fact evidence in relation to the test Claimants’ evidence. On that basis, the two issues I have to decide are:
(i) Whether the evidence is admissible as being relevant.
(ii) Whether there are good grounds to decline to admit it in the course of the Court’s case management powers.
(This is the approach to the admission of similar fact evidence: see O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534).
  1. As to admissibility the Defendant says that none of the additional witnesses objected to gives direct evidence of the offence alleged in any of the test cases and there is no example of the same individual perpetrator being identified as in any test case. Nor is there any identified similarity of location or timing as in the test cases. The Defendant adds that the statements potentially prove only:
(i) Elementary facts concerning the Emergency which the Defendant will not contest, these including the fact that people were detained by the Colonial Government at various locations pursuant to the Emergency legislation and ordinary criminal law, people were required by the Colonial Government not to reside in prohibited areas pursuant to the Emergency legislation and there were incidents of violence on both sides including by persons engaged or purportedly engaged by the Colonial Government.
(ii) Details of detention/residence location and in some cases associated activity similar to that alleged by certain test Claimants (e.g. detention at Embakasi Prison associated with work on construction of the airport there), though with no clarity about timing.
(iii) Isolated incidents of misconduct similar to that alleged by certain test Claimants within Kenya and during the Emergency though with no commonality as to perpetrators’ locations or time periods.
  1. The Defendant took me to the statement of one witness which they said was typical of the witness statements. It is from a Mr Ndua and is dated 8 May 2015. Apart from the preliminaries and introduction, paragraphs 5 – 11 of his statement deal with his being physically assaulted during the state of Emergency before he was moved to a concentration village. He describes an assault by Home Guards which took place at his house. He then says he was released and ordered to report to Gitaro camp on a daily basis and had to work there by way of forced labour for three months without food or drink. In paragraphs 12 – 21 he then described being detained at Githunguri concentration village from the age of about 17. He describes what went on at that village in terms of forced labour. Finally from paragraphs 22 onwards he says that in about 1955 he was moved to Nairobi and thereafter was not subjected to mistreatment. He says he did not receive medical treatment. Under the heading Other Losses (paragraph 25) he says he was forced out of his education because of the state of Emergency.
  2. At Exhibit SH2/3 to Samantha Howard’s second witness statement is a Schedule of the additional witnesses. The penultimate and ultimate columns of this Schedule are formed as a result of Tandem Law’s response in respect of each witness as to whether the witness corroborates a specific test Claimant, and then the Defendant’s comments on the information so provided. As far as Mr Ndua is concerned it is said that his evidence corroborates the evidence of Mr Munyoike (test Claimant 21) whose place of detention was also Githunguri camp. Ms Howard comments that Mr Ndua was not a direct witness to test case events and that he and the test Claimant described the allegedly common location differently (“camp”/”concentration village”).
  3. The Defendant cannot say that the additional witnesses do not give relevant similar fact evidence. For the reasons I have already set out they submit that the statements provide at best limited corroborative evidence of the evidence of test claimants.
  4. I was taken to the entry in relation to witness number 2 on Exhibit SH2/3. This is a Mr Muchiri. The Schedule shows that he was in detention at Embakasi camp/prison, as were four named test claimants. He alleges forced labour in constructing Embakasi Airport, which three of the test claimants allege. (Apart from this his statement alleges detention and abuse at a number of other venues).
  5. The Defendant emphasises that these witnesses do not describe anything above and beyond what happened “on the ground”. However, to take Mr Muchiri’s statement, it may well be in issue that there was no forced detention and forced labour at Embakasi camp. I do not know. On the face of it that part of Mr Muchiri’s statement (and similarly the part of Mr Ndua’s statement which deals with Githunguri camp) is relevant evidence in support of those allegations. How probative it is depends on what is in dispute and the significance of it. That is very difficult for me to determine at this stage. Potentially it may be highly probative, potentially not. If for example the Defendant’s case was that test claimant, Mr Munyoike was a single example of forced labour at Githunguri camp then Mr Ndua’s would be highly significant. This is in the absence of it being direct evidence as to Mr Munyoike’s forced labour; further, to the extent that the Defendant may deny any knowledge “higher up the line” then testimony from additional witnesses of similar experiences in the same camps could be highly probative. It could well support systematic longstanding wrongdoing. I note in this regard that I was told in answer to a question which I raised that the Defendant will have factual witness evidence in relation to what happened “on the ground”. This may be limited but an example apparently is that there is evidence of a medical officer who visited the camps. I do not know what he is going to say. Nevertheless, it maybe that the evidence of some of the additional witnesses would be highly material to undermine his evidence.
  6. Therefore as witnesses, irrespective of their status as claimants on the Group Register, the evidence which I have identified above may be of substantial probative value. I am not in a position to say at this stage.
  7. The Defendant submits that even if the evidence is admissible the Court should consider whether there are good grounds to decline to admit it in the exercise of the Court’s case management powers. They rely on three matters referred to by Lord Bingham in the O’Brien case and a further matter referred to by Lord Phillips. These can be distilled as follows:
(i) It is likely to be said that the 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.
(ii) (Particularly when there is a trial 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.
(iii) Stress will be laid on the burden which admission would lay on the resisting party in terms of time, cost and personnel resources, the lengthening of the trial with the increased cost and stress, 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.
(iv) Whether the evidence is likely to be relatively uncontroversial or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees.
  1. Lord Phillips says at paragraphs 53 – 54 the test of relevance is the test of admissibility of similar fact evidence in a civil suit. The policy considerations which have given rise to the complex rules of criminal evidence are considerations which the judge in civil litigation should keep in mind having regard to the Overriding Objective which requires the Court to deal with cases justly and in a way which is proportionate, expeditious and fair. In this context Rule 32.1 gives the Court the power to control evidence and to exclude evidence that would otherwise be admissible (see above in relation to the historians’ evidence issue).
  2. Finally in terms of authority I refer to:
(i) What Lord Bingham said at paragraph 5 of O’Brien:

“…the importance of doing justice in the particular case is a factor the Court 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.”

(ii) 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 (Laughton v Shalaby [2014] EWCA Civ 1450 at paragraph 22).
  1. The evidence of unfairness is contained in Ms Howard’s first statement, paragraphs 29 – 34. Ms Howard says that the test case process was designed to produce a fair cross section of randomly selected test cases and that the Claimants’ methodology subverts the test case process. It is common ground that the random selection did not mean that there should be no other evidence supportive of the test claimants. So far I have been dealing with the case on the basis that the additional evidence is that which is similar fact evidence to that of the test claimants. If such evidence is of substantial probative value (which I cannot determine at this stage) then it cannot be excluded on the basis that the additional witnesses were not randomly selected as test claimants. Indeed the Defendant said that had the additional witnesses not been claimants then their submission would essentially have been the same.
  2. Next, Ms Howard says that the additional witnesses’ evidence would be adduced without the Defendant having the advantage of pleadings etc and specific medical evidence. Absent properly pleaded cases it will not be possible for the Defendant to investigate the evidence advanced in the way it should bearing in mind those witnesses’ position as claimants on the Group Register. As to this the Defendant says that they have not had the advantage of Part 18 questions. The Claimants’ response to this was that they would consent to Part 18 questions being put so long as they did not go to issues such as causation and quantum which are entirely specific to the individuals. As regards medical evidence, it may be that when a Claimant is examined some fruitful source of cross-examination arises during the taking of the history. The Defendant gave an example of one test claimant who apparently says that he or she was injured by the Mau Mau. However that is not the purpose of a medical report. Medical reports are there to assess condition, prognosis and causation of injuries. Their primary purpose is not to test veracity.
  3. Thirdly, Ms Howard says that the amount of work involved would be grossly disproportionate. She says that the Defendant is presently investigating 36 test cases with a view to having individual defences filed in December 2015 (there is some slippage on this – this is to be subject to a further application shortly) and trial in 2016. It is said that the Defendant is having to commit extraordinary resources to the task and the work involved is dictated to a large extent by the material provided by the Claimants, notably the Part 18 responses and witness statements from the test claimants received in May and June. She says that the lack of particularity in the material has made the exercise of attempting to research and meet the test allegations extremely onerous, and that for the Defendant to have a fair opportunity to assess and test the evidence of the 48 additional witnesses it would have to investigate them in the same way and this would place “an impossible burden” upon the Defendant. These are matters of some significance. They must be taken into account in giving proper consideration to the overriding objective. Had I been persuaded that the additional witnesses could not give evidence of any real probative value then these issues of proportionate costs would assume substantial importance. However, I must deal with the case justly as well as at proportionate cost. In this regard it would, in my judgment, be wholly wrong to exclude the evidence to which I have referred at this stage. Looking at the four O’Brien factors briefly:
(i) I do not consider that the admission of the evidence will distort the trial or distract my attention by focusing on collateral issues.
(ii) I cannot properly weigh the potential probative value of the evidence in the balance, save to say that it may well be significant.
(iii) There will be a substantial burden in time, cost and personnel resources. As to the potential prejudice to witnesses recalling matters long closed or thought to be closed and the loss of documentation and fading recollections – the evidence of these witnesses is no different from that of the evidence in the case as a whole.
(iv) The evidence is likely to be highly controversial (that in itself possibly an indicator that it may be of real probative value); I do not consider it will unbalance the trial or make it harder to see the wood from the trees.
  1. As regards timing, this will have to be discussed; it may be that the witnesses can be factored into the hearing towards the end of 2016.
  2. So far I have dealt with this application on the basis of the extent to which the witnesses corroborate the evidence of the test claimants. This was not the primary basis upon which the Claimants sought to adduce it. They said that the relevance of the evidence was that the Defendant did not admit that during the state of Emergency large numbers of Kenyans were mistreated contrary to law and, if they were, then the Defendant is not liable for them. The Claimants wish to call the additional witnesses who they say suffered at the hands of (in particular) British Forces but also others for whom they say the Defendant is liable. They say the evidence goes to:
•    The conditions in which claimants were kept.
•    Their day to day experiences.
•    The involvement of the British Army directly in the abuse that took place.
•    The scale of the enterprise that the Claimants say marked the conduct of the UK Government throughout the Emergency so that the Court should draw the conclusion that on the balance of probabilities the likelihood is that claimants were subjected to that activity.
•    A view from the ground about which the documents also speak.
  1. Given my findings in relation to the parts of the witness statements which are corroborative of the test Claimants’ evidence, I do not need to deal with the rest of their evidence. This is because I asked the Defendant about the possibility of excising evidence other than that which was corroborative. They replied that they did not seek any redactions at this stage and both sides reserved their position. Either the evidence should be admitted or it should not. They made reference to the case of JP Morgan Chase Bank and others v Springwell Navigation Corporation [2005] EWCA Civ. 1602 where limiting the similar fact evidence was not accepted by the Court of Appeal (see paragraphs 77 – 81). I was not persuaded necessarily that the Defendant would be at any disadvantage if there was excision but, given that it did not seek it, the argument proceeded no further. What I do say is that the potential probative value of the similar fact evidence is such that I am clear that in my discretion I should not exclude this witness evidence. The Defendant’s application therefore fails. Having regard to the provisions of Rule 32 CPR and the Overriding Objective it would not be right to exclude the evidence of those witnesses. I take into account what was said by Arden LJ about using the power under Rule 32.1 “With great circumspection for the purpose of achieving the Overriding Objective” – see Great Future International v Sealand Housing Corporation [2002] EWCA Civ. 1183 paragraphs 23 and 24.
This ruling does not prevent the Defendant from making a further application should it seek to argue that circumstances have changed such that for example it can demonstrate that there is little, if any, probative value in the evidence.