PLEADING OF SIMILAR FACT EVIDENCE STRUCK OUT: YOU CAN’T MILK OTHER CASES…
In Peter Sharp & Son (a Firm) v GEA Farm Technologies (UK) Ltd  EWHC 64 (Ch) Deputy Master Raeburn considered issues relating to “similar fact” evidence and made an order preventing a claimant from adducing evidence in relation to other disputes that the defendant was involved in.
The claimant brought an action alleging defects in a milking machine supplied by the defendant.
THE DISPUTED PLEADING
The defendant’s application related to one paragraph in the Particulars of Claim. The claimant specifically pleaded other disputes which, the claimant said, were of a similar nature.
“26. The Claimant will rely, in support of its allegations at paragraph 25 above upon the similar complaints made by other farmers to GEA in respect of the Mlone AMSs installed by GEA or its agents on other farms between 1 January 2014 and 31 December 2018, including but not limited to those famed by Mr Alan Bennett, Mr Steve Bennett, Mr Michael Evis, Kingshay Dairy Consultants, Mr David Partridge, Mr Michael Robertson, Mr Chris Shield, Mr Richard Tucker, Mr Tom Yuill, Mr Eddie Grigg, Mr Alan Bennet, Mr Richard Isaac, Mr James Bruna, Mr Ben Kedwell, Mr Clive Pullen, Mr Paul Heath, Mr Graham Stockdale, Mr Mark Myers and Mr Antony Hague.”
THE DEFENDANT’S APPLICATION
the Defendant’s application in which it seeks orders and directions under the Court’s case management powers: (i) to exclude from consideration certain matters pleaded by the Claimant in its Particulars of Claim, pursuant to CPR 3.1(2)(k)/(m); and/or (ii) to the effect that any disclosure and evidence in these proceedings shall not extend to such matters, pursuant to CPR PD 51U paragraphs 6.4 and 10.6 and CPR 32.1.
REVIEW OF THE COURT’S POWERS
The Deputy Master reviewed the court’s powers in this respect.
General Case Management Powers
“3.1—(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may—
(k) exclude an issue from consideration;
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.”
I remind myself that CPR rule 3.1(2)(k) (which is clearly distinct to the Court’s power to strike out a statement of case or dispose of a case or issue by summary judgment), does not empower the Court to exclude the consideration of issues which would have the effect of being dispositive of the claim or which are otherwise central to a pleaded defence, thereby preventing a party from putting forward an allegation central to its case.
Rather, the rule allows the Court to control the manner in which allegations are put and thus limit the costs involved; see McPhilemy v Times Newspapers Ltd (Re-Amendment: Justification)  EWCA Civ 1464, per Lord Woolf MR.
“6.4 In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors—
(1) the nature and complexity of the issues in the proceedings;
(2) the importance of the case, including any non-monetary relief sought;
(3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;
(4) the number of documents involved;
(5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates);
(6) the financial position of each party; and
(7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.”
“10.6 The parties must seek to resolve any disputes over the scope of any Extended Disclosure sought in advance of the first case management conference. Any disputes which have not been resolved will normally be decided by the court at the first case management conference.”
Power to Control Evidence
“Power of court to control evidence
(1) The court may control the evidence by giving directions as to –
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination.”
Similar Fact Evidence
Counsel for the Defendant relies upon the well-known two-stage test governing the admissibility of similar fact evidence elucidated by the House of Lords in O’Brien v Chief Constable of South Wales  UKHL 26, as summarised in JP Morgan Chase Bank & others v Springwell Navigation Corporation  EWCA Civ 1602 per Brooke LJ at :
“There is a two-stage test: (i) Is the proposed evidence potentially probative of one or more issues in the current litigation? If it is, it will be legally admissible. (ii) If it is legally admissible, are there good grounds why a court should decline to admit it in the exercise of its case management powers?”
i) consideration of whether the new evidence will distort the trial and distract the attention of the decision-maker by focussing attention on issues that are collateral to the issues to be decided;
ii) the potential probative value of the evidence weighed against its potential for causing unfair prejudice;
iii) consideration of the burden which admission of the evidence would lay on the resisting party,
(per Lord Bingham in O’Brien at ).
“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.”
(per Lord Bingham in O’Brien at ).
i) be guided by the overriding purpose to promote the ends of justice (which requires not only the right answer be given but also procedural justice, in that it be achieved by a trial process which is fair to all parties);
ii) have regard to proportionality and expedition;
iii) in respect of evidence on collateral matters consider whether the evidence in question is likely to be relatively uncontroversial or whether its admission is likely to create side issues which will unbalance the trial,
(per Lord Bingham at  and Lord Philips at  in O’Brien).
i) first, the collateral fact which the party proposed to prove will, when established, be capable of affording a reasonable presumption or inference as to the matter in dispute; and
ii) that the evidence will be reasonably conclusive,
(per Lord Phillips in O’Brien at  and ).
The defendant argued that the evidence related to this paragraph should not be admitted, applying the principles governing similar fact evidence.
THE MASTER’S DECISION
The Deputy Master allowed the defendant’s application. The evidence was not probative of matters in the litigation. Further even if it was admissible it would not be admitted as a matter of the court’s powers of case management.
Is the proposed evidence potentially probative of one or more issues in the current litigation?
Whilst on its face, the Claimant’s proposed evidence could be said to have some logical relevance to the issues in this case (in the general sense that complaints from other farmers against the Defendant could make the complaint the Claimant now seeks to prove more probable); I question whether the nature of the evidence is in fact relevant, in the sense of being potentially probative of the particular issues in this case.
Looking at the parties’ respective pleaded cases, as a very broad summary, the issues in dispute include: (i) the proper parties to the claim; (ii) the nature and extent of any alleged oral and written representations made by the Defendant to the Claimant, including their relevance, falsity, reliance and loss; (iii) the formation of the contract between the parties, including the incorporation of standard terms and whether any oral agreements were made; (iii) whether issues were experienced with the Mlone system and the cause of such issues; and (iv) the nature of any loss or damage sustained by the Claimant.
The fact that complaints have been made by other farmers to the Defendant in relation to an Mlone system on their farms is not in and of itself potentially probative of whether the pleaded defects in the Mlone system and losses sustained by the Defendant were attributable to the Defendant, the Claimant’s own action or inaction, or some other factor. In addition, those complaints are unlikely to be potentially probative of the specific representations alleged to have been made by the Defendant to the Claimant, or the terms of the parties’ contract and the Claimant has not advanced any compelling reasons as to why the terms which may have been agreed between the Defendant and a different farmer are potentially probative in this context.
The facts giving rise to each such complaint could be quite different to those which are relevant to the current dispute and there are at present, no particular findings in relation to the facts underlying each such complaint which are capable of assisting the Court in determining their potential relevance to this case. The issues in those cases could also conceivably be quite different, including in relation to the manner of and reliance upon any alleged representations made by the Defendant to those farmers or the nature and meaning of their negotiated agreements.
Are there good grounds why this Court should decline to admit it in the exercise of its case management powers?
i) The interests of justice: I am satisfied that this is not a case in which justice requires the evidence to be admitted. This is not a case in which if the proposed evidence is excluded, a wrong result may be reached. I do not take the Claimant to have made such a submission and I am equally satisfied that the exclusion of the proposed evidence does not have the impermissible effect of being dispositive of the claim or otherwise preventing the Claimant from putting forward an allegation central to its case.
ii) Proportionality and expedition:
a) Considering the context of this case, the parties have permission to adduce a substantial amount of expert evidence including in relation to farm and herd management, milk quality and the dietary management of cattle in order to assist the Court in the determination of the issues. There is therefore little to no practical utility in adding yet further evidence for consideration at trial in the form of complaints from other farmers which are likely to obstruct and distract from the fact-finding process rather than expedite it;
b) I am satisfied that to adduce the proposed evidence would inevitably result in an unsatisfactory extension to the trial time allocated to the claim, together with additional costs. I reject Counsel for the Claimant’s submissions that the mere fact of numerous “similar” complaints is of itself potentially probative and that the assessment of this material is merely a documentary exercise and will not unduly prolong the trial. Clearly, the evidence is not uncontroversial and will create side issues which will unbalance the trial. The Defendant will inevitably seek to contextualise and explain the matters raised which will lead to an enquiry into various unrelated issues, including the circumstances on those other farms, representations made between different parties and the nature of other contracts, none of which will greatly assist this Court in determining what has occurred as between the Claimant and Defendant in this particular case.
c) If I had concluded that the material was legally admissible, I would have regarded it as having, at best, limited probative force. Given the additional costs of adducing the evidence to which Counsel for the Defendant has referred, I am satisfied that the extremely limited benefits of adducing the evidence do not justify the costs of its admission (CPR 1.4(2)(h));
d) The Claimant’s proposed restriction to narrow the scope of the proposed evidence to the letters of claim and reply is insufficient to persuade me that it would be proportionate to admit such evidence or include it within the ambit of extended disclosure; it would not obviate the need for the Defendant to answer those allegations in the context of its dispute with the Claimant and the proposed approach does not therefore remove the risk of satellite litigation on the nature of those complaints derailing the current trial;
iii) Probative value and unfair prejudice: As indicated above, given the limited probative value to be attributed to the proposed evidence, when weighing that against its potential to cause unfair prejudice to the Defendant (particularly given the fact that the proposed evidence does not account for the particular circumstances on the Claimant’s and other farms), it is quite clear, in my judgment, that its examination would be disproportionately burdensome.
In conclusion, for the reasons given, I am satisfied that it is an appropriate exercise of my case management powers to exclude the matters pleaded at paragraph 26 of the Claimant’s Particulars of Claim from consideration in this action and I shall direct that any disclosure and evidence in these proceedings shall not extend to such matters.