Armagas Ltd v Mundogas SA (‘The Ocean Frost’): CA 1985

Proof of corruption not needed for bribe

In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the objective facts and the overall probabilities.
Held: Mundogas was not vicariously liable for Mr. Magelssen’s deceit.
Goff LJ said: ‘Speaking from my own experience I have found it essential in cases of fraud when considering the credibility of witnesses always to test their veracity by reference to objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay a particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence . . Furthermore it is implicit in the statement of Lord MacMillan in Powell v. Streatham Manor Nursing Home at p. 256 that the probabilities and possibilities of the case may be such as to impel an appellate Court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents, to the witnesses’ motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case.’
On the facts as found and ‘the effect of the judge’s conclusion was that, although Mr. Magelssen did not have ostensible authority to enter into the contract, he did have ostensible authority to tell Mr. Jensen and Mr. Dannesboe that he had obtained actual authority to do so. This is, on its face, a most surprising conclusion. It results in an extraordinary distinction between (1) a case where an agent, having no ostensible authority to enter into a relevant contract, wrongly asserts that he is invested with actual authority to do so, in which event the principal is not bound; and (2) a case where an agent, having no ostensible authority, wrongly asserts after negotiations that he has gone back to his principal and obtained actual authority, in which event the principal is bound. As a matter of common sense, this is most unlikely to be the law.’

Judges:

Goff LJ, Staughton J, Dunn J

Citations:

[1985] 1 Lloyd’s Rep 1, [1985] 1 WLR 640

Jurisdiction:

England and Wales

Citing:

CitedHovenden and Sons v Millhoff 1900
Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole . .
CitedIndustries and General Mortgage Co Ltd v Lewis 1949
When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from . .
AdoptedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .

Cited by:

CitedDr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
AdoptedGrace Shipping v CF Sharp and Co (Malaya) Pte Ltd PC 10-Dec-1986
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord . .
AppliedNina Naicker Gow v Dr Rosemary Harker CA 31-Jul-2003
The defendant had taken a blood sample. The claimant asserted that because the needle had been inserted incorrectly she had suffered damage to her wrist.
Held: Guidance from cases involving allegations of fraud could be relevant when assessing . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedDEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Appeal fromArmagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
CitedFlannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
CitedFen and others v D’Cruz and others CA 13-Mar-2007
The parties disputed whether the first defendant had been held out to be a partner in the second defendant’s firm of solicitors. The first defendant had later absonded. Appeal dismissed. . .
CitedIn Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
CitedThornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
AppliedGoodman v Faber Prest Steel CA 5-Mar-2013
The defendant appealed against the award of damages after being found liable for injuries caused in a road traffic accident. They disputed whether the injuries now complained of were the result of the accident.
Held: the appeal succeed and the . .
CitedNuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .
Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other, Agency

Updated: 12 December 2022; Ref: scu.183409

Her Majesty’s Advocate and Another v Mcintosh: PC 5 Feb 2001

(From High Court of Justiciary (Scotland)) The defendant had been convicted of drug trafficking. He complained that the following confiscation order had infringed his human rights being based an assumption of guilt and which was incompatible with his article 6 rights. The first question was whether he remained a person ‘charged with a criminal offence’. The Court felt not. The application was not initiated by the complainant, could only be made after a conviction, and was part of the sentencing procedure,. The defendant was accused of no additional criminal activity, the statement lodged in support of an application for confiscation order was an accounting statement and not an accusation, the sum ordered did not be the profit from drug trafficking or any other offence, and the time order to be served in the case of default related to the failure, not to any underlying offence, any risk that matters referred to in the statement might be subject to a later charge, left a possibility of double jeopardy, and the proceedings and did not conclude in the verdict. The statutory scheme laid down by a democratically elected parliament should not be readily rejected. The sources of the assets was known to the defendant and a defendant explain them would not be faced with a court order.
Criminal confiscation proceedings do not amount to the bringing of a fresh criminal charge and thus Art. 6(2) of the European Convention on Human Rights is not directly engaged. However, a court is required to act with ‘scrupulous fairness’ in making its assessment for the purposes of a confiscation order. Further, the proceedings are designed to be fully adversarial, affording the accused every opportunity to challenge evidence against him and to call witnesses.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde, Lord Hutton

Citations:

Gazette 15-Feb-2001, Times 08-Feb-2001, [2001] 3 WLR 107, DRA No 12 of 2000, [2003] 1 AC 1078, [2001] UKPCD 1, [2001] 2 All ER 638, 2001 SC (PC) 89, [2001] 2 Cr App R 27, 2001 GWD 6-206, [2001] HRLR 20, 2001 SLT 304, 2001 SCCR 191, [2001] UKHRR 463

Links:

PC, PC, Bailii

Statutes:

Human Rights Act 1998, Proceeds of Crime (Scotland) Act 1995 3(2)

Jurisdiction:

Scotland

Citing:

Appeal fromMcintosh v HM Advocate HCJ 31-Oct-2000
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated . .

Cited by:

CitedRegina v Rezvi HL 24-Jan-2002
Having been convicted of theft, a confiscation order had been made against which the appellant appealed. The Court of Appeal certified a question of whether confiscation provisions under the 1988 Act were in breach of the defendant’s human rights. . .
Appealed toMcintosh v HM Advocate HCJ 31-Oct-2000
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated . .
CitedLloyd v Bow Street Magistrates Court Admn 8-Oct-2003
The defendant had been convicted and made subect to a confiscation order in 1996. A final order for enforcement was made in late 2002. The defendant said the delay in the enforcement proceedings was a breach of his right to a trial within a . .
CitedPeacock, Re SC 22-Feb-2012
The defendant had been convicted of drugs offences, and sentenced under the 1994 Act. The gains he had made exceeded his then assets. Later he acquired further property honestly, and the Court now considered whether those assets could be taken to . .
Lists of cited by and citing cases may be incomplete.

Evidence, Human Rights, Criminal Practice

Updated: 09 December 2022; Ref: scu.163307

Mearns v Smedvig Limited and others: SCS 25 Nov 1998

‘A party seeking to lead a witness with purported knowledge or experience outwith generally recognised fields would need to set up by investigation and evidence not only the qualifications and expertise of the individual skilled witness, but the methodology and validity of that field of knowledge or science.’

Judges:

Lord Eassie

Citations:

[1998] ScotCS 76

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 09 December 2022; Ref: scu.163392

Gray v Haig and Son: 1855

Gray was the agent for Haig and Son, selling whisky on commission. On the termination of the agency a dispute arose as to the amount of the commission due and an account was ordered. Gray had destroyed his books, which were essential to the taking of the account, after the dispute had arisen.
Held: ‘In a case before me this year, one partner, several years before the institution of the suit, and upwards of twenty years after the closing of the partnership business, and when the accounts had been settled between him and his partners by arbitration, and never afterwards opened or disputed, had destroyed the books which contained the accounts of that partnership, I treated lightly the circumstance of that destruction, and did not suffer it to prejudice his case. But the case is very different when the transactions to which they relate are recent, where the accounts arising from them have not been finally adjusted, or the balance ascertained or paid, and still more when that destruction takes place by the person who has actually filed a bill to have the accounts taken of those very transactions to which these books relate. In such a case some very cogent reason must be given to satisfy the Court that the destruction was proper or justifiable, and, in the absence of any such reason, which is the fact here, I am compelled to act on the principle laid down in the well-known case of Armory v Delamirie , and presume, as against the person who destroyed the evidence, every thing most unfavourable to him, which is consistent with the rest of the facts, which are either admitted or proved.’ and ‘But in all cases of contradictory evidence, whether between a witness and a Defendant, or between two witnesses who give evidence in direct contradiction to each other, with regard to a matter equally within the knowledge and cognizance of both, it is the duty of the judicial tribunal to search for facts which may corroborate or invalidate the testimony of either witness. In this case there were books containing the account of the transactions, which would have afforded clear and distinct evidence to enable the Court to judge which of the two was to be believed. This evidence Mr. Gray has himself removed, and removed, as I consider proved by his own evidence, after the contest relating to these accounts had arisen between himself and Haig and Son. He must suffer the necessary consequence of the absence of that evidence so occasioned; and I consider myself bound to believe that these books, if now forthcoming, would prove the truth of the statements contained in Rikey’s evidence.’

Citations:

(1855) 20 Beav 219

Jurisdiction:

England and Wales

Citing:

CitedArmory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .

Cited by:

CitedMalhotra v Dhawan CA 26-Feb-1997
There had been litigation as to the payment due on fees earned during the partnership. One party had destroyed the evidence which would have settled many issues. The court discussed the principle that it should presume all against a destroyer of . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 07 December 2022; Ref: scu.193789

Boyle v Wisman: 1855

After parties were enabled to testify in most civil cases by the 1851, the court recognised that the failure of one of them to deny a fact which it is in his power to deny gives colour to the evidence against him.

Judges:

Alderson B

Citations:

(1855) 10 Exch 647

Statutes:

Evidence Act 1851

Jurisdiction:

England and Wales

Cited by:

CitedLiennard v Slough Borough Council QBD 15-Mar-2002
The claimant sought damages from the respondents who had been responsible for his education, for having failed to diagnose his learning difficulties. The school had recognised that he was underachieving, but diagnosis as to the reason was not easy. . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 07 December 2022; Ref: scu.184028

In Re W v G (Paternity); In Re A (A Minor): CA 18 May 1994

The judge was wrong to limit his ability to draw inferences from a putative father’s refusal to take a test to discover paternity.

Citations:

Times 18-May-1994, [1994] 2 FLR 463

Statutes:

Family Law Reform Act 1969 23(1)

Jurisdiction:

England and Wales

Cited by:

AppliedSecretary of State for Work and Pensions v Jones FD 2-Jul-2003
The appellant Secretary of State challenged a decision of magistrates as to whether the respondent was the father of a child for whom Child Support was sought. The mother had been married, but had been living with the respondent at the appropriate . .
FollowedIn re G (Parentage: Blood Sample) CA 1997
. .
Lists of cited by and citing cases may be incomplete.

Children, Evidence

Updated: 07 December 2022; Ref: scu.82282

Palmer v Trower: 1852

Evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters, ie matters which go merely to credit but which are otherwise irrelevant to the issues in the case.

Citations:

(1852) 8 Exch 247

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Somers CACD 2-Dec-1998
The defendant appealed a conviction for theft from his employer. There were burglaries in circumstances which suggested help from within the company. The defendant now appealed the non-admission of evidence showing a co-worker had been soliciting . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 06 December 2022; Ref: scu.182087

Rex v Warwickshall: 1785

The defendant, Jane Warwickshall had confessed to receiving stolen property. Because of that confession, the property was found in her lodgings concealed in the sackings of her bed.
Held: The court refused to admit her confession because it had been obtained by promise of favour, but ruled that facts discovered as a result of her inadmissible confession could be proved if that could be done:- ‘without calling in the aid of any part of the confession from which it may have been derived.’

Citations:

(1785) 1 Leach 263

Jurisdiction:

England and Wales

Cited by:

CitedC Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 01 December 2022; Ref: scu.252559

Rex v Cheverton: 1848

Citations:

(1848) 2 F and F 833

Jurisdiction:

England and Wales

Cited by:

CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice

Updated: 01 December 2022; Ref: scu.184186

Rex v Kerr: 1837

Citations:

(1837) 8 C and P 176

Jurisdiction:

England and Wales

Cited by:

CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 01 December 2022; Ref: scu.184184

Rex v Thornton: 1824

Citations:

(1824) 1 R and MCCR 27

Jurisdiction:

England and Wales

Cited by:

CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 01 December 2022; Ref: scu.184182

Clonard Developments Limited v Humberts (a Firm): CA 13 Jan 1999

The application to admit evidence was refused. ‘We would be required to draw inferences from this evidence without the benefit of it having been considered by the experts on either side as to what the significance of the sale figure is. In those circumstances, we have come to the conclusion that it would not have had an important influence on the outcome of the issue before the learned judge and we do not think that it is of such critical importance that we should admit it. If we were to admit it, we do not consider it is appropriate for this court to try and evaluate its significance.’

Citations:

[1999] EWCA Civ 553

Jurisdiction:

England and Wales

Citing:

Full appealClonard Developments Limited v Humberts (a Firm) CA 15-Jan-1999
A judge was right to acknowledge that a party’s expert witness might be biased, and assess accordingly. Where a surveyor’s valuation was negligent there was still no liability where the plaintiff did not show it had relied upon the valuation. . .

Cited by:

CitedClonard Developments Limited v Humberts (a Firm) CA 15-Jan-1999
A judge was right to acknowledge that a party’s expert witness might be biased, and assess accordingly. Where a surveyor’s valuation was negligent there was still no liability where the plaintiff did not show it had relied upon the valuation. . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 30 November 2022; Ref: scu.145468

Berkeley Square Holdings Ltd and Others v Lancer Property Asset Management Ltd and Others: CA 15 Apr 2021

Appeal against an order dismissing the claimants’ application to strike out certain paragraphs of the defence. The grounds of the application were that those paragraphs pleaded statements made without prejudice in a mediation between the parties which were therefore inadmissible. It was and remains common ground that, unless falling within an exception to the without prejudice principle, the statements were inadmissible.

Judges:

Lord Justice David Richards

Citations:

[2021] EWCA Civ 551

Links:

Bailii

Jurisdiction:

England and Wales

Evidence

Updated: 30 November 2022; Ref: scu.661903

Canada (Minister of Justice) v Khadr: 23 May 2008

Constitutional law – Charter of Rights – Application – Fundamental justice – Duty to disclose – Canadian officials interviewing detainee in Guantanamo Bay and sharing contents of interviews with U.S. authorities – Whether principles of international law and comity of nations precluded application of Charter – Whether process in place at Guantanamo Bay at that time violated Canada’s binding obligations under international law – If so, whether detainee entitled to disclosure of records of interviews and of information given to U.S. authorities as a direct consequence of conducting interviews – Canadian Charter of Rights and Freedoms, s. 7.
Evidence – Fresh evidence – Admissibility – Fresh evidence admissible to clarify record – No unfairness to other parties in admitting evidence.

Judges:

McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Citations:

2008 SCC 28, [2008] 2 SCR 125

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Evidence

Updated: 27 November 2022; Ref: scu.272826

Khadr v Canada (Attorney General): 25 Jun 2008

The court ordered disclosure by the Canadaian authorities of the transcripts of interviews released to the government relating to the time when the claimant had been held in Guantanamo Bay by the USA.

Judges:

Mosley J

Citations:

2008 FC 807

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Evidence

Updated: 27 November 2022; Ref: scu.272827

Society of Lloyd’s v Jaffray and others: QBD 3 Aug 2000

Any party was free to put in evidence statements where the party who had prepared them had himself decided not to call the evidence. There was no power to call the person to give that evidence, but it could be admitted on the basis that it was hearsay evidence. This reversed the old rule. The court still does not have the power to order a party to tender his witness.

Citations:

Times 03-Aug-2000

Statutes:

Civil Procedure Rules 35.5(5)

Jurisdiction:

England and Wales

Cited by:

CitedThomas-Everard and Others v Society of Lloyd’s ChD 18-Jul-2003
The claimant appealed refusal to set aside a statutory demand made by the respondent society. The proposed defence had been already been dismissed by the courts.
Held: Such a consideration was very relevant, but not necessarily determinative. . .
See AlsoSociety of Lloyd’s v Sir William Otho Jaffray BT ComC 3-Nov-2000
. .
Appeal fromSociety of Lloyd’s v Jaffray and others CA 8-Oct-2001
Applications in group litigation between the Society of Lloyd’s and Names at Lloyd’s – ‘ threshold fraud point’ . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 27 November 2022; Ref: scu.89376

Regina v Exall: 1866

Circumstantial evidence might be compared to a rope comprised of several cords: ‘One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion: but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.’

Judges:

Pollock CB

Citations:

(1866) 4 F and F 922

Jurisdiction:

England and Wales

Cited by:

CitedO’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 26 November 2022; Ref: scu.224509

Carpmael v Powis: 1846

The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a solicitor’s duty.’ and ‘Now, it cannot be denied that it is an ordinary part of a solicitor’s business to treat for the sale or purchase of estates for his clients. For some purposes his intervention is indispensable in such transactions: he is to draw the agreements, to investigate the title, to prepare the conveyance. All these things are in the common course of his business. But it is said that the fixing of a reserved bidding and other matters connected with the sale are not of that character, inasmuch as they might be entrusted equally well to anyone else. It is impossible, however, to split the duties in that manner without getting into inextricable confusion. I consider them all parts of one transaction – the sale of an estate : and that a transaction in which solicitors are ordinarily employed by their client. That being the case, I consider that all communications which may have taken place between the witness and his client in reference to that transaction are privileged.’

Judges:

Lord Lyndhurst LC

Citations:

(1846) 1 Ph 687

Jurisdiction:

England and Wales

Citing:

CitedGreenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
CitedHerring v Clobery 1842
The court considered whether legal advice privilege should be confined to litigation: ‘But further, I think that restriction of the rule is not consistent with, and not founded on, any sound principle; for it may, and in a great variety of cases . .

Cited by:

CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
AppliedPearse v Pearse 2-Jan-1846
Legal privilege was claimed for communications related to transactions concerning the client’s lands and unconnected with any existing or anticipated litigation.
Held: The work done was all part of one transaction of the nature in which . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 26 November 2022; Ref: scu.194260

Castle v Cross: 1984

First-hand evidence, in this case, a print-out from a device, of what is displayed or recorded on a mechanical measuring device is real evidence admissible at common law.
‘In the absence of evidence to the contrary, the courts will presume that [mechanical instruments] were in order at the material time’.

Citations:

[1984] 1 WLR 1372, [1985] 1 All ER 87

Jurisdiction:

England and Wales

Citing:

AppliedSapporo Maru (Owners) v Statue of Liberty (Owners); The Statue of Liberty HL 1968
There had been a collision between two ships. The plaintiff sought to have admitted in evidence a film of radar echoes recorded by a shore radio station. The defendants argued that evidence produced mechanically and without human intervention was . .

Cited by:

CitedDirector of Public Prosecutions v McKeown and Jones HL 20-Feb-1997
A driver was arrested for driving with excess alcohol. At the police station, he was to be tested with the Lion Intoximeter. The officer tested the machine and it calibrated correctly. This was at about a quarter after midnight; the sergeant’s watch . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 25 November 2022; Ref: scu.192206

Clements v Ohrly: 1847

Similarity of handwriting alone is not enough to constitute probable cause for charging a person with forgery without evidence of other circumstances.

Judges:

Lord Denman CJ

Citations:

[1847]

Jurisdiction:

England and Wales

Cited by:

CitedMatin v Commissioner of Police of the Metropolis CA 20-Jun-2002
The claimant sought to have restored his claim for malicious prosecution.
Held: ‘The fact that there might be an arguable case that the prosecutor was activated by malice, that is to say, to prosecute for an improper motive, does not of itself . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 24 November 2022; Ref: scu.191984

Briggs and Others v Clay and Others: ChD 25 Feb 2019

Defendants’ application to exclude evidence said to be ‘without prejudice’ The case concerned a pension scheme for employees within a group of companies. In a prior action by way of a Part 8 claim brought by the trustees of the scheme, the court had held that various deeds prepared for the scheme over many years by the scheme administrators, Aon, were invalidly executed and of no effect. As a result, the burden on the participating employers was increased. There were many employees of associated companies whose claim to membership of the scheme derived not from the deeds directly at issue in the proceedings but from deeds of adherence. Following judgment on the Part 8 claim, there was consideration by the trustees and employers as to whether to appeal, and the solicitors for Aon were involved in those discussions since it was clear that the extra burden on the employers and the expenses of the litigation would be the subject of a claim against Aon. Following negotiations between the trustees/employers and the representative beneficiaries, the parties reached a settlement which included the granting of benefits to those employees whose membership depended on the deeds of adherence.
The employers then brought professional negligence proceedings against Aon. By its defence, Aon contended that the employers should never have accepted in the Settlement that those employees who were subject to deeds of adherence became part of the scheme; and that the legal advisors of the employers had been negligent in failing to pursue that argument (referred to as ‘the Participating Employer Argument’) in the Part 8 litigation and the settlement negotiations, which negligence broke the chain of causation. The employers thereupon joined their former lawyers, both solicitors and counsel, as additional defendants, adopting Aon’s allegations. By their defence, the lawyer defendants contended that Aon, through its solicitors, had been kept closely informed about the issues and arguments in the Part 8 proceedings and, although not directly involved, had liaised with them on those issues and arguments, including during the negotiations which led to the Settlement.
The judgment explains: ‘Aon disputes in particular that it was ‘closely’ involved or that there was close liaison in such matters. There is, however, no dispute that Aon were involved to some extent with the way in which the negotiations with the representative beneficiaries were being conducted: some of the communications between Gowling and Aon’s lawyers are open and will be admissible to prove a degree of liaison and involvement.’
The lawyer defendants sought to rely extensively on the WP communications which they conducted on behalf of their clients with Aon’s lawyers regarding the negotiations which led to the Settlement. They stressed that they sought to rely on that material not for the truth or falsity of anything said or for any admission or implied admission, but only so that the trial judge could see the extent to which Aon’s lawyers were involved. The lawyer defendants contended that this evidence was admissible under the Muller exception to the WP rule.
Held: After a comprehensive review of the authorities, Fancourt J explained the issue facing the court: ‘In both Muller and EMW Law, the without prejudice negotiations involved third parties and related to a different claim, albeit a claim that had some connection with the proceedings before the court. In Muller the negotiations had been concluded and the claim against the third party had been resolved. In EMW Law, there was no finding that the dispute with the third party had been resolved. The orders for disclosure made in neither case included without prejudice communications about the claim that was before the court.
What is distinctive about this case is that there is one claim against different parties: Aon – who, unless they have waived it, have the benefit of privilege in the without prejudice communications with the Claimants – and the Lawyer Defendants, who acted for and advised the Claimants in those negotiations and who wish to rely on the privileged material. The case is unusual in that related without prejudice communications between the Claimants and the representative beneficiaries will be in evidence at trial. The Claimants have waived privilege by suing their former solicitors and Counsel in relation to the conduct of those negotiations and the representative beneficiaries have confirmed their agreement to those negotiations being disclosed. But the Lawyer Defendants seek to put in evidence the content of separate without prejudice communications made in an attempt to settle this claim at the same time as the Approved Settlement was being negotiated with the representative beneficiaries’ lawyers.’
Having rejected the argument that Aon had impliedly waived the WP protection, Fancourt J turned to consider the ratio and scope of the Muller exception: ‘It is significant that all three Lords Justices in the Muller case considered it to be material that the plaintiff had put in issue the reasonableness of his negotiations with the shareholders and that that issue would not be justiciable without disclosure of the negotiations. Similarly, in EMW, Newey J considered it to be material that Mr Halborg had referred to the content of his without prejudice negotiations with BLM and that it was hard to see how EMW’s claim would be justiciable without disclosure of the negotiations. Lewison LJ observed in Avonwick that it was hardly surprising that the court ordered disclosure of the negotiations in Muller given that the plaintiff had put that matter directly in issue.
In this light, the general principle that bringing a claim or making an allegation does not disentitle a party to rely on without prejudice privilege may well be qualified where an issue is raised that is only justiciable upon proof of without prejudice negotiations. Indeed, in cases where the Muller exception has been applied, the judges have emphasised that the claim would otherwise be non-justiciable. A claimant (or defendant) cannot at one and the same time raise an issue to be tried and rely on without prejudice privilege to prevent the court from seeing the evidence that is needed to decide it. However, this exception has not previously been held to apply in the case of without prejudice negotiations in the very claim that is before the court.
I consider that there are a number of facets to the so-called Muller exception, which go beyond the fact that the negotiations have some independent relevance as a fact apart from the truth or falsity of anything stated in them. That is no doubt a necessary condition for any exception applying, otherwise the policy underlying the without prejudice rule would be directly infringed, but it is not a sufficient condition for the application of the Muller exception. This appears to me to depend on the necessity of admitting the material to resolve an issue raised by a party to without prejudice negotiations, in circumstances in which the legitimate protection given to the parties to the negotiations is not adversely affected.
It is clear, on authority, that there is no exception to the without prejudice rule merely because justice can be argued to require one on the facts of a particular case. In EMW Law, Newey J did not conclude that disclosure should be given because justice required it: he concluded that it was just to regard an established exception to the without prejudice rule, whether the Muller exception or a comparable one, as applying on the facts of that case. The facts of EMW Law were somewhat different from Muller, in that there was no evidence of a concluded settlement with Savage Hayward on costs, therefore there was a possibility of prejudice from disclosure of the negotiations. However, given that the family’s and Savage Hayward’s rights were not being adjudicated by the court in that claim, the court felt able to protect them in a different way. The outcome was the same: the legitimate interests of neither party to the without prejudice communications would be prejudiced by their being available to be referred to at trial.’
Analysing the issues raised in the proceedings on that basis, Fancourt J held that evidence of the WP discussions between Aon and the lawyer defendants should not be admitted. He found that consideration of that evidence was not necessary in order to determine whether the lawyer defendants were negligent in failing to raise the Participating Employer Argument, nor to determine whether the Settlement was reasonable. On the issue whether there was a break in the chain of causation, Fancourt J noted that the fact that Aon’s solicitors failed to identify the Participating Employer Argument ‘will surely be uncontentious at trial’ and in any event could be proved without reference to the WP correspondence. Nonetheless he acknowledged that this correspondence was potentially relevant to show the degree of Aon’s involvement. He explained his decision as follows:
‘In my judgment, the issue of causation pleaded by Aon is far from being non-justiciable in the absence of the content of the without prejudice negotiations. The fact of Aon’s involvement to some degree in discussing the basis of the Approved Settlement emerges from the open correspondence. What on a fair analysis the Lawyer Defendants seek to establish by relying on the without prejudice communications is, first, a greater degree of involvement in discussions that may emerge from those communication (such as to justify their pleading that Aon was ‘closely involved’), and secondly some colour derived from statements and assertions in that correspondence, which they hope will make it less credible for Aon to argue that the failure to identify the Participating Employer Argument was grossly negligent.
I accept that the fact of the without prejudice communications and the content of some of them is relevant, but it is far from necessary to refer to them in order to have a fair trial of the issues of gross negligence and break in the chain of causation. Even in the absence of the content of the without prejudice communications, Aon cannot mislead the court by making untrue assertions about the extent of any involvement, and (for reasons I give in the final part of this judgment) the Lawyer Defendants will be entitled to refer to the fact of without prejudice discussions with the Claimants at the time of the appeal and Approved Settlement. It should also be borne in mind that the Lawyer Defendants’ primary defence is that they were not negligent because, as the trustees were advised in November 2011 by a different Leading Counsel, the Participating Employer Argument would fail.
I therefore do not accept that by pleading a new intervening act defence Aon has disentitled itself to rely on the privilege attaching to the contents of its without prejudice communications with the Claimant. Some relevant material will be excluded from evidence, but that is often the case where legal professional privilege or without prejudice privilege is invoked. Once the fact (rather than the content) of the without prejudice communications is admitted, there is relatively little of any substance that will be excluded.’

Judges:

Fancourt J

Citations:

[2019] EWHC 102 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedAvonwick Holdings Ltd v Webinvest Ltd and Another CA 17-Oct-2014
Admissibility in forthcoming trial of correspondence said to be without prejudice: ‘That relates to the without prejudice negotiations that led to the settlement of the arbitration between Webinvest and the third party. The judge held that Mr . .
CitedEMW Law Llp v Halborg ChD 4-May-2017
The defendant appealed from a decision requiring him to disclose documents which he said were held on a without prejudice basis. Mr Halborg, a solicitor, acted for his parents and a family company under a conditional fee agreement on their claim . .
CitedSingle Buoy Moorings Inc v Aspen Insurance UK Ltd ComC 13-Jul-2018
Teare J considered the without prejudice rule: ‘In my judgment an exception can only be allowed where it is of the same character as one already established or where it is an incremental but principled extension of an existing exception, as was the . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 24 November 2022; Ref: scu.634390

EMW Law Llp v Halborg: ChD 4 May 2017

The defendant appealed from a decision requiring him to disclose documents which he said were held on a without prejudice basis. Mr Halborg, a solicitor, acted for his parents and a family company under a conditional fee agreement on their claim against a firm of architects, Savage Hayward. Mr Halborg engaged EMW Law to assist him under an agency arrangement which itself incorporated a CFA in that it provided that EMW would be paid only fees which Mr Halborg or the Halborg claimants had recovered from Savage Hayward. The proceedings against Savage Hayward were settled on terms under which they were liable to pay the Halborg claimants’ costs. When it appeared that Mr Halborg had failed to recover anything in respect of its fees, EMW sued him for breach of implied terms of the agency agreement that he would take all reasonable measures to recover its fees.
A significant issue was whether Mr Halborg had made all reasonable efforts to recover EMW’s costs in his negotiations on costs with Savage Hayward’s solicitors (BMW) and, indeed whether the costs had finally been settled (which Mr Halborg disputed). Mr Halborg sought to withhold, as covered by the WP rule, disclosure of correspondence and notes of communications with BMW relating to those negotiations (referred to as the ‘Class A Documents’).
In his judgment, Newey J (as he then was), after discussing the criticism of the reasoning in Muller, said that he should proceed on the basis that there was an exception which encompasses the facts of the Muller case. He held that the documents should be disclosed, stating, at [64]:
‘ . . I have concluded that, to echo Lord Walker in Ofulue v Bossert and Lord Clarke in the Oceanbulk case, justice clearly demands that an exception to the without prejudice rule (whether that encompassing the facts of the Muller case or another, comparable, exception) should apply . . .’
Newey J set out a number of factors which supported that conclusion, of which three seem to me particularly relevant for the present case. He noted that Mr Halborg had referred in his defence to the negotiations with BMW, and further:
‘iv) It is hard to see how EMW’s claim would be justiciable without disclosure of Class A Documents. EMW and the Court would both, on the face of it, be in the dark as to, for example, what any payments Savage Hayward have made related to, how they came to be made on that basis, why nothing has been paid in respect of other items of costs and, should it prove to be the case that no settlement has been concluded, why not;
v) I see no likelihood that recognising that an exception to the without prejudice rule applies would deter parties from seeking to settle. Those undertaking negotiations will, if well informed, already be aware that the without prejudice rule will not apply if there is a dispute about whether they have reached agreement and that the facts of the Muller case have been held to fall within another exception. The existence of the Muller exception, moreover, means that communications otherwise protected by the without prejudice rule may become disclosable and admissible because the other party to negotiations unilaterally chooses, for reasons of his own, to put forward a case about the negotiations in litigation with a third party; . . ‘

Judges:

Newey J

Citations:

[2017] EWHC 1014 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoEMW Law Llp v Halborg ChD 22-May-2015
. .

Cited by:

CitedBriggs and Others v Clay and Others ChD 25-Feb-2019
Defendants’ application to exclude evidence said to be ‘without prejudice’ The case concerned a pension scheme for employees within a group of companies. In a prior action by way of a Part 8 claim brought by the trustees of the scheme, the court had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 23 November 2022; Ref: scu.583683

Avonwick Holdings Ltd v Webinvest Ltd and Another: CA 17 Oct 2014

Admissibility in forthcoming trial of correspondence said to be without prejudice: ‘That relates to the without prejudice negotiations that led to the settlement of the arbitration between Webinvest and the third party. The judge held that Mr Shlosberg had waived any privilege relating to those negotiations. I disagree. All he said in his evidence was that he told Mr Gayduk that an offer had been made and that his lawyers thought it was a good one. Even if he had purported to waive privilege it was not his to waive. The privilege is a joint privilege to which the third party is also entitled and there is no evidence that the third party has consented to waiver. If the without prejudice privilege has not been waived, on what basis is Avonwick entitled to disclosure? Mr Berry says that he is not seeking to rely on admissions made in the course of negotiations and that if he is not seeking to rely on admissions, then the decision in Muller v Linsley and Mortimer [1996] 1 PNLR requires disclosure.’

Judges:

Lewison LJ

Citations:

[2014] EWCA Civ 1436

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedBriggs and Others v Clay and Others ChD 25-Feb-2019
Defendants’ application to exclude evidence said to be ‘without prejudice’ The case concerned a pension scheme for employees within a group of companies. In a prior action by way of a Part 8 claim brought by the trustees of the scheme, the court had . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 23 November 2022; Ref: scu.538906

Bridget and Papendick v William Bridgwater: 31 May 1855

Plaintiff claimed a right of common by prescription, in respect of a que estate in land, and also by thirty and sixty years’ enjoyment by the occupiers of the land. Defendant offered evidence that A., now deceased, while tenant of the land for years, had declared that he had no such right in respect of the land.
Held: That the declaration was not admissible in evidence, inasmuch as it was in derogation of the title of the reversioner

Citations:

[1855] EngR 515, (1855) 5 El and Bl 166, (1855) 119 ER 443

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Evidence

Updated: 23 November 2022; Ref: scu.292437

Hodgkinson and Corby Ltd and Another v Wards Mobility Services Ltd: ChD 6 Nov 1996

The claimants brought a claim in passing-off first obtaining an interim injunction but then failing at trial. The defendants then claimed under the undertaking in damages given. The claimants now sought to say that the injunction could have been justified on the separate ground that the defendants were in breach of copyright. The defendants said, relying on Henderson v Henderson, that it was too late for the claimant to take the point. The claimants said they had raised the claim in negotiations but had refrained from taking proceedings in relation to the claim because the defendants in those negotiations had asked them to hold fire with respect to that claim. The defendant replied that those negotiations were without prejudice and could not be referred to.
Held: A without prejudice argument could not be used for the purpose of ‘unambiguous impropriety’. In those circumstances reliance on the privilege would be ‘plainly unconscionable’. No allegation of ‘impropriety’ or ‘unconsconability’ was made and, to that extent Hodgkinson was distinguished.
Neuberger J referred to Tomlin’s case which decided that without prejudice correspondence could be looked at to determine whether a settlement had been reached and added: ‘Although, of course, contract and estoppel are quite separate concepts, it appears to me logical and consistent that if ‘without prejudice’ correspondence can be looked at to see if it gives rise to a contract, then such correspondence can also be looked at to see if it gives rise to an estoppel. However, I do not suggest that there is an absolute rule to that effect.’

Judges:

Neuberger J

Citations:

[1997] FSR 178

Jurisdiction:

England and Wales

Citing:

See AlsoHodgkinson and Corby Ltd and Another v Wards Mobility Services Ltd ChD 3-Aug-1994
Proof of the deception of some purchasers is an essential pre-requisite of the tort of passing off. . .

Cited by:

Appeal fromHodgkinson and Corby Ltd (T/a Raymar) v Wards Mobility Services Ltd CA 27-Oct-1997
. .
CitedBrown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 23 November 2022; Ref: scu.269955

Berry Trade Ltd and Another v Moussavi and others: CA 22 May 2003

A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, may generally not be admitted in evidence. An exception to the rule is where there is shown ‘unambiguous impropriety.’ The judge had asked himself whether there was a serious and substantial risk of perjury. That would weaken the real test, and was incorrect. The evidence here should not have been admitted.

Judges:

Lord Justice Peter Gibson, Lord Justice Tuckey and Mr. Justice Nelson

Citations:

[2003] EWCA Civ 715, Times 03-Jun-2003, Gazette 17-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedUnilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
CitedMuller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
CitedFazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
DistinguishedDora v Semper CA 15-Mar-1999
The claimant sought to have admitted evidence that in the course of without prejudice negotiations, the defendant had threatened to put assets beyond the jurisdiction.
Held: The statement was not an admission as such and was admissible. . .
DistinguishedMerrill Lynch, Pierce Fenner and Smith Inc v Raffa 11-May-2000
The judge ruled on the admission of admissions made by the defendant at without prejudice meetings. There was acceptance of Mr Raffa’s involvement in the fraud though he raised the question of collaborators. If he did admit at least his involvement, . .
CitedWH Smith Ltd v Colman CA 20-Mar-2000
The rule against admission in evidence of the content of without prejudice negotiations was not to be set aside because a party making a ‘without prejudice’ communication puts forward an implausible or inconsistent case or faces difficulty . .
CitedKristjansson v R Verney and Co Ltd and Another CA 18-Jun-1998
The rule against the admission of without prejudice negotiations in evidence has an exception where the rule is used to hide unambiguous impropriety. That exception was not to be used to bring in mere inconsistencies in evidence. . .
CitedHawick Jersey International Ltd v Caplan 11-Mar-1998
The Plaintiff (H) claimed repayment of a loan to the defendant (C) of andpound;10,000 made by means of a cheque. C denied it was a loan because he had supplied andpound;10,000 cash. C secretly tape recorded a ‘without prejudice’ meeting at which (a) . .
CitedGreenwood v Fitt 1961
greenwood_fittBC1961
(British Columbia) In the course of without prejudice negotiations, the defendant threatened that he would give perjured evidence and bribe other witnesses to perjure themselves unless the claimants withdrew their claim.
Held: The evidence of . .

Cited by:

FollowedSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
CitedWilliams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 23 November 2022; Ref: scu.182337

Lucas v Barking, Havering and Redbridge Hospitals NHS Trust: CA 23 Jul 2003

The claimant appealed an order requiring him to disclose to the defendants the terms of the instructions given to the expert witness.
Held: Rule 35.10(4) restriction applied to prevent the defendant from obtaining an order for the inspection he sought.

Judges:

Waller, Mantell, Laws LJJ

Citations:

[2003] EWCA Civ 1102, Times 28-Aug-2003, Gazette 02-Oct-2003, [2004] 1 WLR 220

Links:

Bailii

Statutes:

Civil Procedure Rules 31.14(2) 35.10(4)

Jurisdiction:

England and Wales

Citing:

DoubtedMorris v Bank of India ChD 15-Jan-2001
The court applied a wide interpretation of the word ‘instructions’ where the Rules exempted such instruction to experts preparing a report. . .
PreferredTaylor v Bolton Heath Health Authority QBD 14-Jan-2000
The court construed narrowly the term ‘instructions’ within the rules where they exempted document forming part of the instructions to an expert to prepare a report for the litigation from disclosure. The word meant ‘what an expert was told to do’. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Personal Injury, Civil Procedure Rules

Updated: 20 November 2022; Ref: scu.185303

Jones v University of Warwick: CA 4 Feb 2003

The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be reluctant to create rules which would deny the admission of genuine evidence. Where a party behaved in a reprehensible manner, the court should look to other methods of marking the unlawful behaviour, including costs awards, but the court was required to get to the truth. A party’s behaviour in the conduct of litigation, although very blameworthy, may not result in the claim or defence being struck out, or even in evidence being excluded. Any infringement under article 8.1 was justified under article 8.2.

Judges:

Woolf LCJ, Hale, Latham LJJ

Citations:

Times 07-Feb-2003, [2003] EWCA Civ 151, Gazette 20-Mar-2003, [2003] 1 WLR 954

Links:

Bailii

Statutes:

Civil Procedure Rules 32.1(2), European Convention on Human Rights 8.1 8.2

Jurisdiction:

England and Wales

Citing:

CitedSally Rall v Ross Hume CA 8-Feb-2001
A surveillance film of a claimant was a document within the rules. The rules make no specific provision for the admission of such material for the purposes of cross examination of a claimant. A party proposing to use such material was under all the . .
ModifiedRegina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
ModifiedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
ModifiedKuruma v The Queen PC 8-Dec-1954
(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord . .

Cited by:

CitedA, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
CitedAmwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
CitedL v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
CitedWhite v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
CitedDouglas v O’ Neill QBD 9-Feb-2011
The defendant sought permission to adduce CCTV evidence taken secretly. The claimant sought an order for the footage not to be used being an attempt at trial by ambush.
Held: The defendant’s application succeeded. There had been no breach of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence, Civil Procedure Rules, Human Rights

Updated: 20 November 2022; Ref: scu.179000

Kristjansson v R Verney and Co Ltd and Another: CA 18 Jun 1998

The rule against the admission of without prejudice negotiations in evidence has an exception where the rule is used to hide unambiguous impropriety. That exception was not to be used to bring in mere inconsistencies in evidence.

Citations:

[1998] EWCA Civ 1029

Jurisdiction:

England and Wales

Cited by:

CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 19 November 2022; Ref: scu.144508

Interflora Inc and Another v Marks and Spencer Plc: CA 5 Apr 2013

The court gave its reasons for allowing the claimant to bring additional witness evidence as to confusion as opposed to survey evidence.

Judges:

Longmore, Lewison LJJ, Sir Robin Jacob

Citations:

[2013] EWCA Civ 319

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 29-Apr-2010
Response to request for clarification of reference to the ECJ. . .
ECJ OpinionInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 24-Mar-2011
ECJ (Opinion) Trade marks – Keyword advertising corresponding to the trade mark of a competitor of the advertiser – Trade marks with a reputation – Blurring – Tarnishment – Free-riding – Directive 89/104 – . .
ECJInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 22-Sep-2011
ECJ Trade marks – Keyword advertising on the internet – Selection by the advertiser of a keyword corresponding to a competitor’s trade mark with a reputation – Directive 89/104/EEC – Article 5(1)(a) and (2) – . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 20-Jun-2012
Application for permission to to adduce witness evidence at trial from witnesses gathered from two pilot surveys. . .
CitedMarks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-Feb-2013
‘The Claimants (‘Interflora’) seek the permission of the Court to adduce in evidence the witness statements of 13 witnesses at the trial of this action scheduled for mid April 2013. Interflora do not accept that they need the Court’s permission, but . .
DecisionInterflora Inc v Marks and Spencer Plc CA 22-Mar-2013
Interflora had been refused permision to adduce survey evidence, but now appealed against refusal of permission to adduce evidence of confusion by witness statements.
Held: Appeal allowed. Reasons to follow. . .

Cited by:

See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 15-Apr-2013
The defendant objected to the introduction of certain evidence by the claimant under a Civil Evidence Act notice. Claimants seeking to adduce academic journals as expert evidence . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-May-2013
Mark use in search engine was infringing use
The claimant mark owner alleged that the defendant, in paying a search engine to use the claimants mark as a search keyword was infringing its rights. The defendant argued that the use of the same sign in different contexts could amount to a . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 12-Jun-2013
The court considered the form of the injunction requested to give effect to the earlier full judgment in the case brought, requiring the defendant to discontinue any use of the terms complained of as infringing the claimant’s registered marks as . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Evidence

Updated: 14 November 2022; Ref: scu.472114

Vaughan v London Borough of Lewisham and Others: EAT 1 Feb 2013

EAT PRACTICE AND PROCEDURE – Admissibility of Evidence
In support of a discrimination claim the Claimant sought permission to adduce in evidence 39 hours’ worth of covert recordings which she had made of contacts between herself and her managers or colleagues. The Employment Judge refused the application.
HELD, dismissing the appeal, that the Judge had been plainly right to refuse the application as made, since neither the recordings themselves nor any transcripts had been made available. However, it was open to the Claimant to make a more focused application, properly supported by transcripts of the material sought to be relied on.
‘the practice of making secret recordings in this way is, to put it no higher, very distasteful; . . The law is now established that covert recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable’

Judges:

Underhill J

Citations:

[2013] UKEAT 0534 – 12 – 0102

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedAmwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .

Cited by:

See AlsoVaughan v London Borough of Lewisham and Others QBD 11-Apr-2013
The claimant sought an order to restrain anticipated defamatory comments and evidence to be given to an employment tribunal.
Held: It could not be said as the claimant asserted that dfeences were bound to fail, and no determination should be . .
See AlsoVaughan v London Borough of Lewisham and Others (Practice and Procedure : Costs) EAT 6-Jun-2013
EAT Practice and Procedure : Costs – Tribunal orders that Appellant should pay Respondents one-third of their costs (estimated prior to assessment at andpound;260,000) on the basis that the claim was misconceived . .
CitedPunjab National Bank (International) Ltd and Others v Gosain EAT 7-Jan-2014
EAT PRACTICE AND PROCEDURE – Preliminary issues – Whether court recordings of relevant meetings prior to Claimant’s alleged dismissal were to be admissible in evidence at trial insofar as they involved private . .
Lists of cited by and citing cases may be incomplete.

Employment, Evidence

Updated: 14 November 2022; Ref: scu.471564

Cummings and Others v The Ministry of Justice: QBD 17 Jan 2013

The claimant prisoners brought actions seeking damages for assault and other torts. They had complained of racist treatment and of the conditions of their segregation. The court now considered applications for the management of the case.
Held: Trial by jury was refused. The evidence sought to be presented as similar fact evidence was not such, since it dealt with the actions of prison officers other than those now defendants.

Judges:

Tugendhat J

Citations:

[2013] EWHC 33 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Principal judgmentCummings and Others v The Ministry of Justice QBD 22-Jan-2013
. .
Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other, Evidence

Updated: 13 November 2022; Ref: scu.470147

HM Revenue and Customs v Atlantic Electronics Limited: UTTC 26 Nov 2012

UTTC APPEAL AGAINST DIRECTION – First-tier Tribunal refusing to admit certain evidence – whether refusal a reasonable exercise of discretion – no -appeals allowed and decisions re-made – principles to be taken into account by Tribunal.

Citations:

[2012] UKUT 423 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At FTTTxAtlantic Electronics Ltd v Revenue and Customs FTTTx 12-May-2011
CASE MANAGEMENT – Exclusion of evidence and admission of late evidence – Principles applicable – O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038, HL applied – Need for balancing exercise . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 12 November 2022; Ref: scu.468857

Bates and Others v Post Office Ltd: QBD 17 Oct 2018

Application by the defendant to strike out considerable passages of the evidence contained in the six witness statements lodged by the claimants.

Judges:

Justice Fraser

Citations:

[2018] EWHC 2698 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoBates and Others v Post Office Ltd QBD 10-Nov-2017
Directions in group litigation – claims by former postmasters against the PO for dismissals and prosecutions arising from faulty Horizon accounting software. . .

Cited by:

See AlsoBates and Others v Post Office Ltd (No 3) QBD 15-Mar-2019
Group litigation claiming damages for post office sub-postmasters for financial losses from malfunctioning accounting software. . .
See AlsoHamilton and Others v Post Office Ltd CACD 23-Apr-2021
Post Office Prosecutions were an abuse
This judgment concerns forty-two men and women who were employed by Post Office Limited as sub-postmasters, sub-postmistresses, managers or counter assistants. They were all prosecuted by their employer and convicted of crimes of dishonesty. Many . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 10 November 2022; Ref: scu.628217

Bairstow and Others v Queens Moat Houses Plc: CA 7 Aug 1997

New rules on evidence procedures are not retrospective. Notices under the 1968 Act should have been served to be allowed to admit hearsay evidence.

Citations:

Times 23-Oct-1997, [1998] 1 All ER 343, [1997] EWCA Civ 2290

Links:

Bailii

Statutes:

Civil Evidence Act 1968, Civil Evidence Act 1995

Jurisdiction:

England and Wales

Litigation Practice, Evidence

Updated: 10 November 2022; Ref: scu.662134

Mahon and Another v Rahn and Others (1): CA 12 Jun 1997

Two company directors sued Swiss bankers who had responded to enquiries from the police in London. The charges which followed had been dismissed, and the directors sued in defamation, seeking to rely upon the materials sent to the police.
Held: The appeal succeeded. There is no implied undertaking as to the use of disclosed documents in criminal proceedings preventing their use in civil proceedings. It was foreseeable that the information, if acted upon, would be made public. This applied whether or not the material was obtained under compulsion. There was no analogy between the position of the Crown in a criminal case and that of a party in civil proceedings. It could not be said that the Crown would be deterred from complying with its obligations of disclosure, whether at common law or now under statute, by concern that the accused might use the documents for some ulterior purpose. The rules of public interest immunity, immunity from suit and qualified privilege should be sufficient protection for people who might be adversely affected by collateral use of disclosed documents.

Judges:

Otton LJ, Staughton LJ

Citations:

Times 12-Jun-1997, [1998] QB 424

Jurisdiction:

England and Wales

Citing:

Appeal fromMahon v Rahn QBD 19-Jun-1996
Directors of a London firm of stockbrokers brought libel proceedings against two Swiss bankers.
Held: The absolute immunity which is given to both witnesses and potential witnesses extends to all those taking part in a criminal investigation . .

Cited by:

Appealed toMahon v Rahn QBD 19-Jun-1996
Directors of a London firm of stockbrokers brought libel proceedings against two Swiss bankers.
Held: The absolute immunity which is given to both witnesses and potential witnesses extends to all those taking part in a criminal investigation . .
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
See AlsoMahon, Kent v Dr Rahn, Biedermann, Haab-Biedermann, Rahn, and Bodmer (a Partnership) (No 2) CA 8-Jun-2000
The defendant’s lawyers wrote to a financial services regulatory body investigating the possible fraudulent conduct of the plaintiff’s stockbroking firm. The letter was passed to the Serious Fraud Office who later brought criminal proceedings . .
CitedMcBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
See AlsoMahon v Rahn and others (No 2) CA 8-Nov-1999
Brooke LJ attempted to draw a distinction between simple cases. . .
Lists of cited by and citing cases may be incomplete.

Defamation, Evidence

Updated: 06 November 2022; Ref: scu.83320

Rex v Wilde: 1835

Citations:

(1835) 1 R and MCCR 452

Jurisdiction:

England and Wales

Cited by:

CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 05 November 2022; Ref: scu.184183

Secretary of State for Trade and Industry v Ashcroft and Others: CA 26 Feb 1997

A liquidator’s affidavit was admissible in company director disqualification action, even though it contained hearsay evidence.

Citations:

Gazette 19-Mar-1997, Times 04-Mar-1997, [1997] EWCA Civ 1101

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Company, Evidence, Jury

Updated: 05 November 2022; Ref: scu.141497

Malhotra v Dhawan: CA 26 Feb 1997

There had been litigation as to the payment due on fees earned during the partnership. One party had destroyed the evidence which would have settled many issues. The court discussed the principle that it should presume all against a destroyer of evidence, and dismissed the appeal. The case was one for an account, and therefore a payment in was not appropriate, and the court was correct to allow for the Calderbank letter. The judge, in view of his findings was free to make the order for payment of indemnity costs.
‘First if it is found that the destruction of the evidence was carried out deliberately so as to hinder the proof of the plaintiffs claim then such finding will obviously reflect on the credibility of the destroyer. In such circumstances it would enable the court to disregard the evidence of the destroyer in the application of the presumption. That is not this case.
Second, if the court has difficulty in deciding which party’s evidence to accept then it would be legitimate to resolve that doubt by the application of the presumption. But, thirdly, if the judge forms a clear view, having borne in mind all the difficulties which may arise from the unavailability of material documents, as to which side is telling the truth I do not accept that the application of the presumption can require the judge to accept evidence he does not believe or to reject evidence he finds to be truthful.’

Judges:

Lord Justice Saville Lord Justice Morritt Sir Patrick Russell

Citations:

[1997] EWCA Civ 1096, [1997] 8 Med LR 319

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedArmory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .
CitedGray v Haig and Son 1855
Gray was the agent for Haig and Son, selling whisky on commission. On the termination of the agency a dispute arose as to the amount of the commission due and an account was ordered. Gray had destroyed his books, which were essential to the taking . .
CitedIndian Oil Corporation v Greenstone Shipping SA 1988
A ship had on board some oil of the shipowners and it was mixed with oil, the property of the receivers, and transported to India. The mixture could not be separated for practical purposes and the question was how much of the oil were the receivers . .
CitedBartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) ChD 1980
A claim was made against a trustee for compensation for losses incurred during the administration of the trust.
Held: For a court to order an account by a trustee on the basis of wilful default, and make the defendant liable not only for . .
CitedWillis v Redbridge Health Authority CA 22-Dec-1995
An unsuccessful Defendant cannot be ordered to pay costs on an indemnity basis to a legally aided Plaintiff, even if it might otherwise be justified. The normal basis is for standard costs. . .
CitedNichols v Evens 1883
. .

Cited by:

CitedIS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
CitedZabihi v Janzemini and Others CA 30-Jul-2009
The claimant said that he had left valuable jewelry with the defendant for sale. The defendant said at first they had been stolen, but then returned jewelry which the claimant denied was what had been left. The defendant appealed a finding that he . .
Lists of cited by and citing cases may be incomplete.

Evidence, Company, Costs

Updated: 05 November 2022; Ref: scu.141492

Wisniewski v Central Manchester Health Authority: CA 1997

The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.’

Judges:

Brooke LJ

Citations:

[1997] PIQR 324, [1998] Lloyds Rep Med 223

Jurisdiction:

England and Wales

Citing:

CitedChapman v Copeland 1966
. .
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedMcQueen v Great Western Rly Co CA 1875
If a prima facie case is made out capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that . .
CitedO’Donnell v Reichard 1975
. .
CitedHughes v Liverpool City Council CA 11-Mar-1988
. .
CitedRegina v Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .

Cited by:

CitedBenham Limited v Kythira Investments Ltd and Another CA 15-Dec-2003
The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant’s case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a . .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedUK Insurance Ltd v Gentry QBD 18-Jan-2018
Calim for damages by insurance company claiming that a claim by the defendant on which it had paid had in fact been fraudulent. The claim was made in deceit.
Held: ‘I have the required very high level of confidence that the Claimant’s . .
CitedAB (Preserved FTT Findings; Wisniewski Principles) Iraq UTIAC 11-Aug-2020
Preserving findings of fact
(1) Whether and, if so, when the Upper Tribunal should preserve findings of fact in a decision of the First-tier Tribunal that has been set aside has been considered by the Higher Courts in Sarkar v Secretary of . .
CitedScott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Evidence

Updated: 04 November 2022; Ref: scu.188866

Regina (Mapah) v Secretary of State for the Home Department: Admn 25 Feb 2003

The claimant challenged rules preventing him recording his interview when applying for asylum.
Held: The rule preventing such recordings was not improper. To allow such private recordings might give rise to much satellite litigation, and the applicant was given full opportunity to make and keep notes of the interviews.

Judges:

Pitchford J

Citations:

Times 05-Mar-2003, Gazette 01-May-2003, [2003] EWHC 306 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

DistinguishedDirshe, Regina (on the Application of) v Secretary of State for the Home Department CA 20-Apr-2005
The asylum claimant had sought to be allowed to record his interview with the immigration officer, but this had been refused.
Held: Review was granted. Whilst in the majority of cases a recording should be unnecessary, since the Mapah case, . .
Lists of cited by and citing cases may be incomplete.

Evidence, Immigration

Updated: 03 November 2022; Ref: scu.179813

Thomas v Commissioner of Police for Metropolis: CA 28 Nov 1996

In an action for damages and false imprisonment, the defendant police officers sought to have introduced the claimant’s previous criminal record, which was expired under the 1974 Act.
Held: The judge had been correct not to follow practice in criminal cases on such questions. The purpose of the Act in civil proceedings was to allow a person with spent convictions to present himself as of good character. The admission of the convictions was wrong in law, but it had not led to any substantial injustice.
Evans LJ said that the court: ‘has . . to consider whether the likely significance of the fact of a previous conviction in the . . eyes [of the court or tribunal] is such that [it] may be unfairly prejudiced against [that party] . . The adverb ‘unfairly’ is a necessary qualification, because some prejudice is inevitable except in cases of total and obvious irrelevance where . . the evidence should be excluded in any event. When relevance and prejudice coexist, then the judge can . . decide whether the potential prejudice to one party outweighs the prima facie right of the other party to introduce evidence of previous convictions [to the extent that they are relevant.]’
Sir Richard Scott VC said that if justice cannot be done without the evidence of the conviction being admitted, it will be admitted.

Judges:

Evans LJ, Sir Richard Scott V-C

Citations:

[1996] EWCA Civ 1052

Statutes:

Rehabilitation of Offenders Act 1974 7

Jurisdiction:

England and Wales

Citing:

CitedRegina v Nye CACD 1982
When there are previous convictions which are spent, it is not possible to refer to the defendant as a person of good character. It is however possible for a modified direction to be given to the effect that the defendant has no previous convictions . .
CitedClifford v Clifford 1961
The court stated the common law position of the cross examination of a defendant on his antecedents. Cairns J said: ‘The range of permissible cross-examination as to credit is, however, a very wide one. It has never, I think, been doubted that a . .
CitedDirector of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
CitedReynolds v Phoenix CA 1978
The court discussed the effect of the 1974 Act on the admission of a spent conviction which was relevant or potentially relevant (depending on the trial judge’s findings as to ‘materiality’ for insurance purposes) to a liability issue in the case: . .

Cited by:

CitedA v B EAT 19-Feb-2013
EAT Practice and Procedure : Admissibility of Evidence – Rehabilitation of Offenders Act 1974 – whether employment judge right to rule that justice could not be done without evidence of the employee’s spent . .
See AlsoThompson v Commissioner of Police of Metropolis; Hsu v Same CA 20-Feb-1997
CS Damages of 200,000 pounds by way of exemplary damages had been awarded against the police for unlawful arrest and assault.
Held: The court gave a guideline maximum pounds 50,000 award against police for . .
Lists of cited by and citing cases may be incomplete.

Evidence, Information

Updated: 03 November 2022; Ref: scu.140919

Interflora Inc and Another v Marks and Spencer Plc and Another: ChD 20 Jun 2012

Application for permission to to adduce witness evidence at trial from witnesses gathered from two pilot surveys.

Judges:

Arnold J

Citations:

[2012] EWHC 1722 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 29-Apr-2010
Response to request for clarification of reference to the ECJ. . .
ECJ OpinionInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 24-Mar-2011
ECJ (Opinion) Trade marks – Keyword advertising corresponding to the trade mark of a competitor of the advertiser – Trade marks with a reputation – Blurring – Tarnishment – Free-riding – Directive 89/104 – . .
ECJInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 22-Sep-2011
ECJ Trade marks – Keyword advertising on the internet – Selection by the advertiser of a keyword corresponding to a competitor’s trade mark with a reputation – Directive 89/104/EEC – Article 5(1)(a) and (2) – . .

Cited by:

See AlsoMarks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-Feb-2013
‘The Claimants (‘Interflora’) seek the permission of the Court to adduce in evidence the witness statements of 13 witnesses at the trial of this action scheduled for mid April 2013. Interflora do not accept that they need the Court’s permission, but . .
See alsoInterflora Inc v Marks and Spencer Plc CA 22-Mar-2013
Interflora had been refused permision to adduce survey evidence, but now appealed against refusal of permission to adduce evidence of confusion by witness statements.
Held: Appeal allowed. Reasons to follow. . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc CA 5-Apr-2013
The court gave its reasons for allowing the claimant to bring additional witness evidence as to confusion as opposed to survey evidence. . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 15-Apr-2013
The defendant objected to the introduction of certain evidence by the claimant under a Civil Evidence Act notice. Claimants seeking to adduce academic journals as expert evidence . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-May-2013
Mark use in search engine was infringing use
The claimant mark owner alleged that the defendant, in paying a search engine to use the claimants mark as a search keyword was infringing its rights. The defendant argued that the use of the same sign in different contexts could amount to a . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 12-Jun-2013
The court considered the form of the injunction requested to give effect to the earlier full judgment in the case brought, requiring the defendant to discontinue any use of the terms complained of as infringing the claimant’s registered marks as . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Evidence

Updated: 03 November 2022; Ref: scu.461912

Regina v Turner (Terence): CACD 1974

The defendant appealed against his conviction for murder. He admitted that he had killed his girlfriend with a hammer, but sought to bring psychiatric evidence that he was susceptible to provocation.
Held: The law jealously guards the role of the jury, or the court where it is the trier of the facts, as the judge of human nature, of the behaviour of normal people and of situations which are within the experience of ordinary persons or are capable of being understood by them
Expert medical evidence based upon observation of a witness can only be admitted if that evidence showed a recognised mental illness.

Lawton LJ said: ‘An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case, if it is just out of the scientific jargon, it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves . . Jurors did not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.’ and ‘A man’s personality and mental make-up do have a bearing upon his conduct. A quick-tempered man will react more aggressively to an unpleasing situation than a placid one. Anyone having a florid imagination or a tendency to exaggerate is less likely to be a reliable witness than one who is precise and careful. These are matters of ordinary human experience. Opinions from knowledgeable persons about a man’s personality and mental make-up play a part in many human judgments.’
. . And ‘Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless.’
It is a well recognised rule of evidence that ‘in general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up’

Judges:

Lawton LJ

Citations:

[1975] QB 834, (1974) 60 Cr App R 80, [1975] 1 All ER 70, [1975] 2 WLR 56, (1975) 60 Cr App R 834

Jurisdiction:

England and Wales

Cited by:

CitedMartin v Regina CACD 30-Oct-2001
The defendant had shot a burglar who had entered his isolated home at night. He claimed self defence, but the burglar appeared to have been shot as he retreated. A defendant is entitled to use reasonable force to protect himself, others for whom he . .
CitedRegina v Ward CACD 1993
The court considered the admission of medical evidence to support other evidence against a defendant as to his propensity. ‘But we conclude on the authorities as they now stand that the expert evidence of a psychiatrist or a psychologist may . .
CitedPinfold, Mackenney v Regina CACD 15-Dec-2003
The appellants challenged their convictions for murder. The convictions had been based substantially upon the evidence of a co-accused who had admitted his part. They now challenged the admission by way of support of the evidence of the co-defendant . .
CitedRegina v O’Brien; Regina v Hall; Regina v Sherwood CACD 16-Feb-2000
It is proper for the court to admit psychiatric evidence of a defendant’s particular readiness to make false confessions. Such evidence should however be closely circumscribed, and should include for example, that it makes the evidence gained . .
CitedRegina v Hersey CACD 1-Dec-1997
The defendant appealed against his conviction for robbery, which had been based in part on witnesses identifying his voice. Particular concern was raised where a series of recordings had been brought together from which the witness had been asked to . .
CitedRegina v Stockwell CA 5-Apr-1993
Expert evidence of facial comparison was admissible if the information and assessment are not otherwise available to the jury. As to Turner: ‘It is to be noted that Lawton LJ there referred to a jury forming their own conclusions ‘without help’. . .
CitedHenry, Regina v CACD 29-Jun-2005
The defendant appealed his conviction for soliciting to murder and conspiracy to murder. An expert’s opinion now described him as of low intelligence and vulnerable to the sort of pressure of which he complained.
Held: The expert evidence had . .
CitedFirth v Epping Magistrates Court Admn 3-Feb-2011
The defendant had faced a charge of assault in the Magistrates Court and had pleaded not guilty. She had indicated in the ‘trial issues’ form through her lawyer that her defence was self defence. The prosecutor then indicated that the charge was to . .
CitedC v Regina CACD 6-Jul-2012
The issue in this appeal relates to the admission of evidence of witnesses, identified in her directions by the judge as expert witnesses, who gave evidence as to the impression they had formed as to the truth of complaints made to them by an . .
CitedGibson, Regina v CACD 11-Jan-2006
The defendant renewed has application for leave to appeal against his conviction for the murder of his daughter-in-law. The principle evidence against him was that of an accomplice. She had received letters to say that no further action would be . .
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
CitedChallen, Regina v CACD 28-Feb-2019
Appeal from conviction for murder. The defendant had killed her husband with a hammer. She said that he had, through his controlling behaviour, abused her over many years.
Held: The verdict of manslaughter was substituted. . .
AppliedRegina v Loughran CACD 1999
The appellant had been convicted at a retrial of offences of rape and robbery. He said that there had been an attempt at sexual intercourse with the consent of the complainant, but the penetration had not occurred. He denied robbery. At the time of . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Evidence

Updated: 27 October 2022; Ref: scu.190487

Molnlycke AB v Procter and Gamble Ltd: CA 1994

The court said that in patents cases, the primary evidence will be the opinion evidence of properly qualified expert witnesses, all other evidence being secondary to that primary evidence.

Citations:

[1994] RPC 49

Jurisdiction:

England and Wales

Cited by:

CitedSeb SAa v Societe De’Longhi Spa CA 4-Jul-2003
The claimant’s action for patent infringement had been dismissed on the basis that the patent was invalid for obviousness.
Held: There was material before the judge on which he could properly conclude as he did on the presence of common . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Evidence

Updated: 26 October 2022; Ref: scu.184326

Regina v Taylor and Goodman: CACD 27 Oct 1998

An accomplice called by the prosecution should have his convictions disclosed by the prosecution before being called. A defendant’s bad criminal record should be disclosed if he made serious allegations against a prosecution witness. The judge had a discretion.

Citations:

Times 03-Nov-1998, [1998] EWCA Crim 3039

Links:

Bailii

Jurisdiction:

England and Wales

Evidence, Crime

Updated: 25 October 2022; Ref: scu.155913

Regina v Robinson (Raymond): CACD 8 Dec 1993

Expert evidence which was not to extend to oath helping evidence, which is designed to boost the character of a prosecution witness is to be excluded, but may be possible in some circumstances.

Citations:

Gazette 08-Dec-1993, Times 25-Nov-1993, Ind Summary 03-Jan-1994

Jurisdiction:

England and Wales

Evidence

Updated: 25 October 2022; Ref: scu.87637

Regina v McAndrew-Bingham: CACD 28 Dec 1998

The offence of attempted child-abduction is an offence of assault or threat of injury, and so the evidence in chief of the child complainant could be given by video recording, and any cross examination be done by live television link.

Citations:

Gazette 03-Feb-1999, Times 28-Dec-1998

Statutes:

Child Abduction Act 1984 2, Criminal Justice Act 1988 32(2)(a)

Jurisdiction:

England and Wales

Criminal Practice, Evidence

Updated: 25 October 2022; Ref: scu.87302

Regina v Murray: CACD 10 Jun 1994

If one defendant claims a defence of duress from fear of the other’s driving, the other driver’s driving convictions are relevant and can be admitted in evidence. Evidence of the convictions of the other driver should have been admitted even though he did not give evidence because they were relevant. Knowledge of his character might well have coloured the jury’s deliberations and bolstered the credibility of Murray’s account. Unless there is simply no nexus whatever between the previous convictions sought to be adduced and the offence alleged against the accused, they should be admitted and admitted in these particular circumstances without any nice distinctions being drawn between the various individual offences recorded in the record.

Citations:

Ind Summary 11-Jul-1994, Times 24-Jun-1994, [1995] RTR 239

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Randall (EP) CACD 21-Feb-2003
The defendant had been a co-accused on a charge of murder. He appealed saying the judge had incorrectly directed the jury on the relevance of his co-accused’s previous convictions for violence.
Held: The appeal was allowed. He should have been . .
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
CitedRegina v Southwark Coroner ex parte Fields Admn 30-Jan-1998
The deceased died after being hit by a policemen with his baton when being arrested. The verdict of misadventure was now challenged. The police officer said he had hit out in fear of imminent attack. It was said that the Coroner had permitted those . .
Lists of cited by and citing cases may be incomplete.

Evidence, Road Traffic

Updated: 25 October 2022; Ref: scu.87397

Regina v Khan (Sultan): CACD 1 Jun 1994

An unlawful bug of a private conversation on private property, was nevertheless correctly admitted into evidence if it was not unfair to do so within the context of the trial.

Citations:

Independent 14-Jun-1994, Times 01-Jun-1994, Gazette 13-Jul-1994

Statutes:

Police and Criminal Evidence Act 1984 78

Jurisdiction:

England and Wales

Citing:

Appealed toRegina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .

Cited by:

Appeal fromRegina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 25 October 2022; Ref: scu.87073

Regina v Gray, Liggins, Rowlands, Ridings: CACD 5 Aug 1994

Without an allegation of conspiracy, there are severe limitations on the use of the evidence of one defendant against other co-defendants. Evidence against one defendant was inadmissible against others without an allegation of a common enterprise.

Citations:

Times 05-Aug-1994, Gazette 26-Oct-1994

Jurisdiction:

England and Wales

Evidence, Crime

Updated: 25 October 2022; Ref: scu.86756

RB (Somalia) v Secretary of State for The Home Department: CA 13 Mar 2012

The appellant claimed asylum on the basis that she was a member of the Bajuni minority clan from Koyama, an island in Somalia. If that was true, she risked persecution from the majority clan. She appealed against an adverse finding based in part on evidence given from a an expert body SPRAKAB under conditions of anonymity.
Held: ‘Linguistic analysis at SPRAKAB is a two-stage process. First, the analyst listens to a recorded specimen of speech, typically an interview. The analyst notes features of the speech which appear to be of interest. Second, the analyst discusses those features with a linguist. The analyst and linguist decide whether the features are diagnostic of the speaker’s origin and produce a report with four grades of likelihood: certainty (one way or the other), most likely, likely and possibly. The rationale for identification of the degree of certainty or otherwise is usually explained in the report. The analysts are given extensive training by the linguists so as to look for certain distinctive features of any particular language or dialect. ‘

Judges:

Rix, Moses LJJ, Briggs J

Citations:

[2012] EWCA Civ 277, [2012] WLR(D) 77

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal fromRB (Linguistic Evidence SPRAKAB) Somalia UTIAC 15-Sep-2010
1 Linguistic analysis reports from Sprakab are entitled to considerable weight. That conclusion derives from the data available to Sprakab and the process it uses. They should not be treated as infallible but evidence opposing them will need to deal . .

Cited by:

Appeal fromSecretary of State for Home Department v MN and KY SC 6-Mar-2014
The court was asked as to the use of linguistic analysis (provided by SPRAKAB) as evidence in immigration cases so as to identify the origin of an appellant.
Held: The Practice Directions already provided guidance on the use and admission of . .
Lists of cited by and citing cases may be incomplete.

Immigration, Evidence

Updated: 23 October 2022; Ref: scu.451904

Rogers v Hawken: QBD 1894

(Year unknown) In a case of the admissibility of questions put before arrest, the Divisional Court, (judges not prone to lean against a prisoner)
Held: The statement was admissible and observed that ‘R. v. Male must not be taken as laying down that a statement of the accused to a police constable without threat or inducement is not admissible. There is no rule of law excluding statements made in such circumstances’.

Judges:

Russell, LCJ and Mathew J

Citations:

[1894] 67 LJ QB 526

Jurisdiction:

England and Wales

Citing:

ExplainedRegina v Male 1893
The court rejected a statement made by a prisoner in custody to a constable who had cross-examined him, saying merely that the police have no right to manufacture evidence. . .

Cited by:

CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 21 October 2022; Ref: scu.184197

Williams v Attridge Solicitors (a Firm): CA 8 Jul 1997

The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal against a summary strike out.
Held: The Ladd v Marshall criteria need not be satisfied in an application to admit fresh evidence where a case had been struck out pursuant to Order 18, rule 19.

Judges:

Brooke LJ

Citations:

[1997] EWCA Civ 2049

Jurisdiction:

England and Wales

Citing:

CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
CitedLangdale v Danby HL 1982
Summary judgment had been given under Order 86. A solicitor had acted gratuitously and in good faith for the other party in the sale of a cottage, subject to an option to repurchase the cottage at the same price after 21 years. He obtained summary . .

Cited by:

CitedRudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd CA 22-Aug-1997
Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as . .
CitedRudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice

Updated: 19 October 2022; Ref: scu.142446

Regina v Somers: 1963

An expert is permitted to give second hand information.

Citations:

[1963] 3 All ER 808

Jurisdiction:

England and Wales

Cited by:

CitedGrant v Director of Public Prosecutions Admn 22-Jan-2003
The appellant had been convicted of failing to give a breath test, and of driving with excess alcohol. He had falsely claimed that he had had a drink in the five minutes before being asked to take the test, and said the officer should not have . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 17 October 2022; Ref: scu.187206

Regina v Elliott: CACD 22 Dec 1997

The defendant appealed from convictions of wounding with intent, and murder. The issue was one of identification, and he criticised the absence of a full Turnbull direction.
Held: A Turnbull warning should warn the jury of the dangers inherent in identification evidence, the reason for the danger, and the fact that one or more honest witnesses may still be wrong. In this case, the prosecution suggested it was recognition rather than identification evidence, and a full warning was not required. The judge should nevertheless have given the direction. ‘Where issues of identification arise, which depend so often on an accumulation of detailed points, it is usually a desirable approach for the Judge, at some stage, to put before the jury a coherent list of the points for the defence. If the exercise is conducted solely on the basis that the individual points to be made will be dealt with in the course of recounting the evidence, it is perilously easy for individual points to be overlooked, or for an apparently ‘weighted’ approach to develop as between prosecution and defence.’ He had also been unclear as to the burden of proof on the alibi question. The appeal was allowed.

Judges:

Lord Justice Potter, Mr Justice Holland, And The Recorder Of Liverpool (His Honour Judge Clarke)

Citations:

[1997] EWCA Crim 3419

Jurisdiction:

England and Wales

Citing:

CitedRegina v Bentley CACD 1994
Referring to the summing up upon the identification issues: ‘There is no doubt that there were two matters missing from it. The first was that there was no warning as to the dangers of identification evidence and the reasons for those dangers . .
CitedRegina v Pattinson and Exley CACD 1996
In giving a Turnbull direction, the court should ‘(a) Warn the jury of the special need for caution before convicting on that evidence.. (b) Instruct the jury as to the reason for such need. And (c) Refer the jury to the fact that a mistaken witness . .
CitedRegina v Fergus CACD 29-Jun-1993
A judge should withdraw a case which was based on poor identification evidence, and the prosecution must be sure to disclose all identification evidence. ‘In a case dependent on visual identification, and particularly where that is the only . .
CitedRegina v Lesley CACD 1996
Referring to the standard alibi direction, ‘As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi.’ the court said that . .
CitedRegina v Keene 1977
‘The jury must be told that they can rely on a false alibi as supporting an identification only if they are satisfied that the sole reason for the fabrication was to deceive them on the issue of identification.’ . .
Lists of cited by and citing cases may be incomplete.

Evidence, Crime

Updated: 11 October 2022; Ref: scu.152874

Regina v Mahmood: CACD 27 Jan 1998

The appellant was convicted of supplying heroin. He and his co-defendant who had pleaded guilty, had been filmed on video. The appellant did not give evidence but contended that it was the other, not he, who had supplied the heroin and received the price.
Held: The defence had invited the jury to interpret a poor quality film in a certain way. This could scarcely engage the operation of section 34(1), and direction had been inappropriate: ‘As already noted, the appellant elected not to give, or call, any evidence at trial. Therefore he did not fail at the interview at the police station to mention, in the language of section 34(1), ‘any fact relied on in his defence at trial’.’

Citations:

[1998] EWCA Crim 259

Statutes:

Criminal Justice and Public Order Act 1994 34

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Webber HL 22-Jan-2004
The defendant complained that the judge had given a direction under s34 even though his counsel had only put matters to witnesses for the prosecution.
Held: A positive suggestion put to a witness by or on behalf of a defendant may amount to a . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 11 October 2022; Ref: scu.153133

The Pensions Regulator v Hermes Parcelnet Ltd (Tribunal Procedure and Practice – Evidence): UTAA 1 Feb 2021

Appeal against case management decision refusing to exclude evidence of an employment tribunal decision but not admitting its findings of fact.
Rule 15(2) – admitting and excluding evidence – subject to overriding objective – permissible to bypass the question whether the evidence would be admissible in a civil trial.
Argument that judge misdirected herself – important to distinguish language used in a direction and language used in explaining how the tribunal implement the direction.
Danger of taking expressions such as `stand in the shoes’ of the decision-maker too literally.

Citations:

[2021] UKUT 20 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Evidence

Updated: 11 October 2022; Ref: scu.659500

Regina v Kokogho and Kokogho: CACD 31 Jul 1996

The defendants appealed convictions for fraud. It was alleged they had made multiple and false claims for housing and other benefits. Some evidence was admitted which should only have been admitted on the basis of it being similar fact evidence. Although the section would require no question to be put as to the defendant’s character, in this case, he had himself made reference to such matters.
Held: Any defect had been cured by the judge’s careful direction. There was no duplicity in the charges. The defendants knew for which matters they had been convicted. Appeal dismissed.

Judges:

Lord Justice Roch, Mr Justice Collins, And His Honour Judge Myerson Qc

Citations:

[1996] EWCA Crim 726

Statutes:

Criminal Evidence Act 1898 1(f)

Jurisdiction:

England and Wales

Citing:

CitedJones v Director of Public Prosecutions 1962
. .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice

Updated: 08 October 2022; Ref: scu.148390

Regina v Quinn: CACD 15 Mar 1994

Police must follow the published Code of Practice, when conducting identity parades, and may not substitute their own. If the evidence is allowed in despite the breach, the judge should explain the significance of the breach to the jury, as it may go to the weight they attach to the evidence.

Citations:

Ind Summary 04-Apr-1994, Times 15-Mar-1994, [1995] 1 Cr App Rep 480

Statutes:

Police and Criminal Evidence Act 1984 66

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Sewa Singh Gill and Paramjit Singh Gill CACD 31-Jul-2003
The appellants sought to challenge their convictions for cheating the Inland Revenue. They were accused of having hidden assets and income from the revenue. The appellants objected to the use at trial of material obtained in a ‘Hansard’ interview. . .
CitedRegina v Popat CACD 23-Mar-1998
Though an identification parade should be held whenever it would serve a useful purpose, where the evidence of identification by a witness was already complete and satisfactory there was no continuing obligation on the police to provide an . .
CitedGough and Another v The Chief Constable of the West Midlands Police CA 2-Mar-2004
The claimants sought return of vehicle parts from the police. The police replied that the goods had been tampered with in such a way as to suggest they may have been stolen, and that they were therefore kept, even after the finish of the court . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 08 October 2022; Ref: scu.87582

Regina v Keane: CACD 15 Mar 1994

Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific evidence. The great principle is that of open justice: ‘If the disputed material may prove the defendant’s innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it. But how is it to be determined whether and to what extent the material which the Crown wish to withhold may be of assistance to the defence? First, it is for the prosecution to put before the court only those documents which it regards as material but wishes to withhold. As to what documents are ‘material’ we would adopt the test suggested in [Melvin].’ and ‘[Material evidence is that] which can be seen on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue whose relevance is not apparent from the evidence the prosecution proposes to use; (c) to hold out a real, as opposed to a fanciful, prospect of providing a lead on evidence which goes to (a) or (b).’

Judges:

Lord Taylor of Gosforth C.J

Citations:

Independent 16-Mar-1994, Times 15-Mar-1994, [1994] 1 WLR 746, [1994] 2 All ER 478, (1994) 99 Cr App R 1

Jurisdiction:

England and Wales

Citing:

CitedRegina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
CitedRegina v Melvin 20-Dec-1993
The court considered what material should be disclosed by a prosecutor: ‘I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue . .

Cited by:

CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
CitedRegina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
CitedRegina v Brown (Winston) HL 20-Feb-1997
The victim had been stabbed outside a nightclub. Two witnesses identified the defendant. The defendants complained that evidence had not been disclosed to them.
Held: There is no duty at common law on the prosecution to warn the defence of . .
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
CitedRegina v Livingstone CANI 25-Jun-2013
The defendant appealed against his conviction for murder, saying that police officers had fabricated a confession, and had severely mistreated another detainee to concoct further evidence.
Held: The appeal was allowed. Had the material . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 08 October 2022; Ref: scu.87033

Regina v Chenia: CACD 1 Nov 2002

CS The defendant had made no comment replies during interview. He did not give evidence at trial, but otherwise took part, though he did not put any fact before the jury. The judge directed the jury that they might draw adverse inferences from his silence. He appealed.
Held: The facts put forward at trial must include facts put forward by prosecution witnesses. There had been a misdirection, because the judge had failed to direct the jury on the need to be sure there was no innocent explanation of the defendant’s silence. However, there was no substantial departure from fairness and the verdict stood. ‘We can see that there is scope for argument as to whether the mere putting of a fact to a witness in cross-examination would be sufficient to amount to reliance upon it for the purpose of s.34, although we can think of circumstances in which it might be. However, it is not necessary to resolve that question for the purposes of this appeal.’ and ‘It would in our view have been desirable for the judge to include a direction of the kind suggested, namely that no question of drawing an adverse inference could arise unless the jury were sure that there was a case to answer. However, we do not think that this trial could possibly be held to be unfair or the conviction unsafe on that ground. That is because no jury could possibly have concluded that there was no case to answer on the facts.’

Judges:

Lord Justice Clarke, Mr Justice Pitchford and Judge Fabyan Evans

Citations:

Gazette 09-Jan-2003, [2002] EWCA Crim 2345, [2003] 2 Cr App R 83

Links:

Bailii

Statutes:

Criminal Justice and Public Order Act 1994 34

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Webber HL 22-Jan-2004
The defendant complained that the judge had given a direction under s34 even though his counsel had only put matters to witnesses for the prosecution.
Held: A positive suggestion put to a witness by or on behalf of a defendant may amount to a . .
CitedBeckles, Regina v CACD 12-Nov-2004
The appellant had been convicted in 1997 of robbery and false imprisonment. His case was now refererred by the Criminal Cases Review Commission. The defendant had, on advice from his solicitor refused to answer questions at the police station. The . .
CitedPetkar and Farquar, Regina v CACD 16-Oct-2003
The defendants appealed their convictions and sentence for theft. Whilst employed by a bank thay had arranged for transfers to their own account. Each blamed the other. They appealed on the basis that the direction on their silence at interview was . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 05 October 2022; Ref: scu.177940

Burnett v Lynch: CA 21 Mar 2012

The GP doctor appealed against a finding that she had a duty of care to the respondent in her claim for professional neglience in failing to diagnose breast cancer.
Held: The appeal failed. There is a distinction between a truthful witness and an accurate witness: ‘It is commonplace for a trial judge, and HHJ Gosnell, the DCJ of a busy court centre, is an especially experienced one, to conclude that he has not heard witnesses who failed to tell the truth in the sense that they deliberately lied. Rather, as here, he heard honest, that is, not untruthful, witnesses, whose recollections he did not accept as correct or accurate. Once he had decided that no witness was lying he correctly identified his task as ‘to decide the issues on the balance of probability remembering that the Claimant has the burden of proof’. He rehearsed the arguments supportive of each party’s case, explained his findings as to two clinical notes, and, having assessed the likelihood or otherwise of the competing cases, gave his reasons for finding as a fact ‘that there was a consultation with [the Appellant] in February or March 2006 at which the [Respondent] complained of a small pea-sized lump in her breast. There was an examination of the [Respondent] and she was told that the cause was likely to be a blocked milk duct’.’

Judges:

Rafferty DBE LJ, Mann Jm Dame Janet Smith DBE

Citations:

[2012] EWCA Civ 347

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedMerthyr Tydfil Car Auction Ltd v Thomas and Another CA 11-Jul-2013
The company appealed against an award of 9,000 pounds for nuisance in the form of excessive noise and fumes.
Held: The appeal failed: ‘the grant of planning permission cannot authorise the commission of a nuisance but it may, following its . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Evidence

Updated: 05 October 2022; Ref: scu.452194

Regina v Randall (EP): CACD 21 Feb 2003

The defendant had been a co-accused on a charge of murder. He appealed saying the judge had incorrectly directed the jury on the relevance of his co-accused’s previous convictions for violence.
Held: The appeal was allowed. He should have been allowed in his own defence to bring in evidence of the co-accused’s previous violent record as evidence of that defendant’s propensity to violence.

Judges:

Mr Justice Mccombe Lord Justice Kennedy Mr Justice Treacy

Citations:

[2003] EWCA Crim 436

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appealed toRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
ApprovedLowery v The Queen PC 1974
(Victoria) A young girl was sadistically murdered. The two accused, were present and the crime was committed by one or the other, or both. Each brought evidence of the unlikelihood that he could have committed the murder. L emphasised his good . .
CitedRegina v Miller 1952
The fact that a defendant has previous convictions is not normally relevant: ‘The fundamental principle, equally applicable to any question that is asked by the defence as to any question that is asked by the prosecution, is that it is not normally . .
CitedRegina v Murray CACD 10-Jun-1994
If one defendant claims a defence of duress from fear of the other’s driving, the other driver’s driving convictions are relevant and can be admitted in evidence. Evidence of the convictions of the other driver should have been admitted even though . .
CitedRegina v Lee CACD 1976
A defendant charged with burglary of a house should have been allowed to introduce into evidence the bad character of others, not called as witnesses, who had access to the house. The relevance of this evidence is that it goes to disposition. . .
CitedRegina v Thompson and others CACD 1995
The court considered the circumstances under which an accused could call in aid the convictions of a co-defendant:
Held: It was fundamental that it is not normally relevant to enquire into a defendant’s previous character or to ask questions . .
CitedRegina v Vye etc CACD 7-Apr-1993
Detailed guidance was given on good character directions, as to how and when they should be given, but: ‘Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this . .

Cited by:

Appeal fromRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence

Updated: 04 October 2022; Ref: scu.179575

Charnock and Others v Rowan and Others: CA 20 Jan 2012

14 passengers in a bus hit from behind at a slow speed had all claimed whiplash injury. The expert had said that the accepted speed required to produce such an injury was a change of 3mph, which would require an impact at 30mph, whereas the evidence suggested that the car had been travelling at no more than 15mph. The judge had found against the existence of the standard (Delta V) referred to. The defendant appealed.
Held: The court was really being asked as to the admissibility of records made by the doctor of statements made to him on examining a claimant. The appellants argued that they were hearsay, but admissible. The appeal was dsmissed.

Judges:

Gross LJ, Mann J, Sir Stephen Sedley

Citations:

[2012] EWCA Civ 2

Links:

Bailii

Statutes:

Civil Evidence Act 1968, Civil Evidence Act 1995 6(5)

Jurisdiction:

England and Wales

Citing:

CitedKearsley v Klarfeld CA 6-Dec-2005
The defendants had suggested three doctors to examine the claimant. The claimants suggested a Dr P to prepare a report, but when asked for his CV instructed him anyway. The defendant’s unqualified motor examiner said the accident had occurred at . .
CitedNorth Australian Territory Co v Goldsborough, Mort and Co CA 1893
The court considered the propriety of the cross examination of a witness of the statements of others. The plaintiff company in liquidation, sought rescission of a contract for the purchase of land. In the course of the liquidation and after the . .
CitedDenton Hall Legal Services and others v Fifield CA 8-Mar-2006
The court gave guidance on the procedures to be adopted to avoid difficulties arising from factual differences between medical experts.
Buxton LJ discussed the status of quotations recorded by the doctor examining a claimant, saying: ‘What the . .
CitedLawrenson v Lawrenson and Equity Red Star 12-Jul-2005
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Evidence

Updated: 04 October 2022; Ref: scu.450422

Cox v Jones: ChD 6 May 2004

In the course of the hearing some of the claimant’s allegations were dropped. Newspapers having taken an interest in the case sought disclosure of the full document.
Held: The parts of the statements not relied upon included allegations against third parties who would have no opportunity of reply, and which allegations were not pursued. The names would be deleted. The court made available the documents required under 5.4 but not further.

Judges:

Mann, The Honourable Mr Justice Mann

Citations:

[2004] EWHC 1006 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 5.4 32.13

Jurisdiction:

England and Wales

Family, Evidence, Media, Civil Procedure Rules

Updated: 29 September 2022; Ref: scu.196624

Raja v Van Hoogstraten: ChD 19 Dec 2005

Damages were claimed after claimant alleged involvement by the defendant in the murder of the deceased. The defendant had been tried and acquitted of murder and manslaughter, but the allegation was now pursued. The defendant had since failed to co-operate with the court.
Held: The defendant’s acquittal was not conclusive. The standard in a civil court is the balance of probability adjusted to reflect the seriousness of the allegation. The defendant had absented himself without giving any reason from the hearing, and the evidence must be accordingly qualified. The defendant also had a criminal record, including convictions for violence and threats, which had not been put before the criminal court. He had made several admissions of a proclivity for violence or threats of violence. ‘I am satisfied on the balance of probabilities, (and indeed if it were necessary beyond reasonable doubt), taking full account of the seriousness of the allegations against him, that Mr van Hoogstraten recruited two highly dangerous thugs, Mr Knapp and Mr Croke, to murder Mr Raja in order to halt the prosecution of the Chancery Action by Mr Raja against him and then to obtain the release or settlement of Mr Raja’s claims against Mr van Hoogstraten on terms highly favourable to Mr van Hoogstraten. The evidence pointing to this conclusion is overwhelming. It would have been sufficient for this purpose even if Mr van Hoogstraten had good and sufficient reasons for not attending the trial. The conclusion is the stronger in the absence of any such reason. ‘

Judges:

The Hon Mr Justice Lightman

Citations:

[2005] EWHC 2890 (Ch)

Links:

Bailii

Statutes:

Civil Evidence Act 1968 11

Jurisdiction:

England and Wales

Citing:

CitedRegina v Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .
CitedA Local Authority v S and W and T By her Guardian FD 27-May-2004
A child had died. The father was accused and acquitted of murder by way of shaken baby syndrome. The local authority persisted with an application for care orders for the other children.
Held: ‘I do not claim to have divined truth. I have . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedSecretary of State for Health v C CA 2003
The absence of a defendant without any reason being given may entitle the tribunal to conclude that the defendant did not consider that his account would survive oral examination. . .
CitedRegina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
CitedGibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .

Cited by:

CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
CitedAshley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 25 September 2022; Ref: scu.236550

Hawick Jersey International Ltd v Caplan: 11 Mar 1998

The Plaintiff (H) claimed repayment of a loan to the defendant (C) of andpound;10,000 made by means of a cheque. C denied it was a loan because he had supplied andpound;10,000 cash. C secretly tape recorded a ‘without prejudice’ meeting at which (a) H did not dispute and indeed accepted C’s repeated assertions that the transaction was not a loan but one involving an exchange for andpound;10,000 in cash and (b) H expressly or impliedly said that the proceedings were brought to persuade C to reach a fairer settlement or to settle other differences.
Held: The without prejudice negotiations were being used as a cloak for unambiguous threats to continue to press a dishonest claim. There was an exception to the without prejudice rule, and the threats were admissible in evidence.

Judges:

Anthony May QC J

Citations:

Times 11-Mar-1998

Jurisdiction:

England and Wales

Cited by:

CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
CitedSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
CitedBrodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 19 September 2022; Ref: scu.182475

DSM SFG Group Holdings Ltd and Others v Kelly: CA 19 Dec 2019

The court considered the extent to which it is permissible for a litigant to rely on confidential information, obtained by covert recording of another’s premises, to support a legal claim before that litigant has established the right to use that information.

Judges:

Lord Justice Simon

Citations:

[2019] EWCA Civ 2256

Links:

Bailii

Jurisdiction:

England and Wales

Evidence, Intellectual Property

Updated: 19 September 2022; Ref: scu.645856

Atlantic Electronics Ltd v Revenue and Customs: FTTTx 12 May 2011

CASE MANAGEMENT – Exclusion of evidence and admission of late evidence – Principles applicable – O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038, HL applied – Need for balancing exercise

Citations:

[2011] UKFTT 314 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At FTTTxHM Revenue and Customs v Atlantic Electronics Limited UTTC 26-Nov-2012
UTTC APPEAL AGAINST DIRECTION – First-tier Tribunal refusing to admit certain evidence – whether refusal a reasonable exercise of discretion – no -appeals allowed and decisions re-made – principles to be taken . .
At FTTTxHMRC v Atlantic Electronics Ltd UTTC 6-Feb-2012
UTTC COSTS – Transitional appeal – Appeal by HMRC against direction under Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009, Sch 3, para 7 for 1986 applying 2009 Rules to the proceedings – . .
Lists of cited by and citing cases may be incomplete.

Evidence, Taxes Management

Updated: 17 September 2022; Ref: scu.443018

Regina v McNamee: CACD 17 Dec 1998

The defendant appealed convictions for causing explosions likely to endanger life. Subsequent evidence had come to light through the investigations of the Criminal Cases Review Commission, and he appealed. Various bomb material caches had been found, and the defendant’s fingerprints were found on them. Evidence suggesting that a different group of men were responsible was withheld from the defence. The defendant asserted innocent explanations for the fingerprints. The fingerprint experts also disagreed as to the value of the marks found. The court could not be sure that a jury hearing the evidence would have convicted. As to the non-disclosure, the impact of the fresh evidence on the case is not conclusive, but it is such as to render the verdict of the jury unsafe.

Judges:

Lord Justice Swinton Thomas Mr Justice Garland And Mr Justice Longmore

Citations:

[1998] EWCA Crim 3524

Links:

Bailii

Statutes:

Criminal Appeal Act 1995

Jurisdiction:

England and Wales

Evidence

Updated: 16 September 2022; Ref: scu.156398

Regina v Grannell: CACD 1990

The complainat had seen the burglar/defendant, noted his car number and later identified the car to the police. He identified the defendant from a group identification, but the codes of practice were not followed.
Held: Though the Codes had been breached the court must look to see whether this had lead to any unfairness, and in doing so the court of trial had a discretion to admit that evidenec. The admission of the identification evidence could not be faulted in this case.

Citations:

(1990) 90 Cr App R 149, [1990] CLY 808

Statutes:

Police and Criminal Evidence Act 1984

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Sewa Singh Gill and Paramjit Singh Gill CACD 31-Jul-2003
The appellants sought to challenge their convictions for cheating the Inland Revenue. They were accused of having hidden assets and income from the revenue. The appellants objected to the use at trial of material obtained in a ‘Hansard’ interview. . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 11 September 2022; Ref: scu.185073

Gestmin SGPS Sa v Credit Suisse (UK) Ltd and Another: ComC 15 Nov 2013

The claimant sought damages alleging negligence by the defendants in advice given on an investment in an initial public offering of shares.
Leggatt J considered the reliability of the memories of witnesses: ‘An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been ‘refreshed’ by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.’

Judges:

Leggatt J

Citations:

[2013] EWHC 3560 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedBlue v Ashley (Judgment) ComC 26-Jul-2017
The parties disputed the existence of an oral agreement by a businessman to pay a sum of millions of pounds in certain circumstances to a business acquaintance with whom he was then drinking in a public house.
Held: The claim failed: ‘no . .
CitedLegg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
CitedKogan v Martin and Others CA 9-Oct-2019
Dispute over the authorship of the screenplay of a film.
Held: ‘the judgment cannot stand. The judge has adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Evidence

Updated: 10 September 2022; Ref: scu.518011

Regina v Bora: CACD 23 Dec 1998

The defendant appealed a conviction for supplying heroin. He had been present at different stages of what was a supply of a substantial amount of the drug, but was at no time seen in possession either of the drug or money. The main prosecution witness, a co-defendant had subsequently been shown to have lied, and evidence to support that had been withheld from the defence.
Held: The conviction was unsafe, and a re-trial was ordered.

Judges:

Lord Justice Auld Mr Justice Latham His Honour Judge Myerson

Citations:

[1998] EWCA Crim 3526

Jurisdiction:

England and Wales

Cited by:

See AlsoRegina v In the Matter of an Application for Permission To Apply for Judicial Review Director of Public Prosecutions ex parte Bora Admn 14-Jun-1999
. .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 09 September 2022; Ref: scu.156400

Regina v Somers: CACD 2 Dec 1998

The defendant appealed a conviction for theft from his employer. There were burglaries in circumstances which suggested help from within the company. The defendant now appealed the non-admission of evidence showing a co-worker had been soliciting such assistance. It was said that evidence went only as to her credit.
Held: This evidence was not sufficiently relevant to justify its admission. To have admitted it would have wasted the jury’s time, unnecessarily extended the trial, and confused the issues to no ultimate point.

Judges:

Lord Justice Henry Mr Justice Mitchell And His Honour Judge David Mellor

Citations:

[1998] EWCA Crim 3430

Jurisdiction:

England and Wales

Citing:

CitedHarris v Tippett 1811
Where the character of a witness is relevant to the issue, cross examination is permitted, ‘As to any improper conduct of which he may have been guilty for the purpose of trying his credit; but, when the questions are irrelevant to the issue on the . .
CitedPalmer v Trower 1852
Evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters, ie matters which go merely to credit but which are otherwise irrelevant to the issues in the case. . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 09 September 2022; Ref: scu.156304

Lavelle v Noble: CA 18 Apr 2011

The claimants had sought damages alleging that the defendants had been involved in a fight leading to the death of their father. They appealed after losing the case, saying that the judge had wrongly excluded certain evidence.

Citations:

[2011] EWCA Civ 441

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Evidence

Updated: 08 September 2022; Ref: scu.434844

Regina v M (Witness Statement): CACD 20 Feb 2003

The defendant appealed his conviction for murder. The principal witness’ statement had been allowed to be read to the jury after the witness had claimed to be afraid of giving evidence.
Held: There was no general principle which would operate against admitting evidence in this way. Luca did not establish a rule to which there would be no exceptions. Such a result would make the sections unusable and only encourage criminals to frighten witnesses. In this case the judge’s discretion was not supportable because of the defendant’s own disability, and the witness had potential flaws.

Judges:

Potter LJ, Mackay, Mellor JJ

Citations:

Times 02-May-2003

Statutes:

Criminal Justice Act 1988 823(3), European Convention on Human Rights 6.3(d)

Jurisdiction:

England and Wales

Citing:

CitedLuca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Human Rights

Updated: 02 September 2022; Ref: scu.181829

Taylor v Chief Constable of Chester: 28 Oct 1986

Evidence as to the content of a video recording might be admissible even though the tape itself was not made available.

Citations:

[1986] 1 WLR 1479, Times 28-Oct-1986

Jurisdiction:

England and Wales

Cited by:

CitedAttorney General’s Reference (No 2 of 2002) CACD 7-Oct-2002
The defendants had been seen on video. The prosecution sought to admit, in addition to the video evidence itself, evidence from police officers as to the identity of persons claimed to be shown on the tape. The officers evidence was offered but not . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 01 September 2022; Ref: scu.183023

Regina v Dearman, Southgate: CACD 8 Oct 2001

The appellants had been convicted of conspiracy to supply class A drugs. They appealed against conviction on the basis that the police and subsequently the prosecution involved lies or deceit intended to protect the identity of undercover detectives and informers. The defendants identified no act or confession into which they were led by such a deception. The judge had heard applications for public interest immunity certificates, but not in respect of any matter which was to form part of the evidence.
Held: Appeals against sentence were successful in that sentences of five years were substituted for seven.

Judges:

Potter LJ, Tomlinson, Roderick Evans JJ

Citations:

Unreported, 8 October 2001

Jurisdiction:

England and Wales

Citing:

CitedRegina v Smith (Joe) CACD 20-Dec-2000
The defendant was arrested for burglary and a non-intimate sample taken without his consent. The DNA profile matched blood at the scene of the burglary, and this match was the bedrock of the prosecution case. Before the trial, prosecuting counsel . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Evidence

Updated: 01 September 2022; Ref: scu.166546

Regina v Fell: CACD 22 Mar 2001

Expert medical evidence has to be based on a physical examination of the witness whose credibility is being impugned before it can be admitted.

Citations:

[2001] EWCA Crim 696

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedPinfold, Mackenney v Regina CACD 15-Dec-2003
The appellants challenged their convictions for murder. The convictions had been based substantially upon the evidence of a co-accused who had admitted his part. They now challenged the admission by way of support of the evidence of the co-defendant . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 01 September 2022; Ref: scu.158758

Regina v Matthews; Regina v Alleyne: CACD 7 Feb 2003

The defendants appealed their convictions for murder, complaining that the judge had failed properly to direct the jury as to the required likelhood of death which might result from the act complained of, and turned a rule of evidence into a rule of law. They had thrown a youth from a bridge into a river, and the judge had said that his death was virtually certain to follow
Held: The judge had gone further in his direction than he should, redrafting the direction. It should have been on the basis that the jury could not find the necessary intent ‘unless . . ‘ Though it was wrong to elevate a rule of evidence into one of law, in this no injustice was caused.

Judges:

Rix, Crane, Maddison JJ

Citations:

Times 18-Feb-2003

Jurisdiction:

England and Wales

Citing:

CitedRegina v Nedrick CACD 10-Jul-1986
The appellant poured paraffin through the front door of a house and set it alight. In the fire a child died.
Held: Lord Lane CJ considered whether a simple direction to the jury on intent to either kill or to do serious bodily harm was . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 29 August 2022; Ref: scu.179312