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Evidence - From: 1985 To: 1989

This page lists 21 cases, and was prepared on 21 May 2019.

 
Regina v Skegness Magistrates' Court ex parte Cardy [1985] RTR 49
1985

Robert Goff LJ
Road Traffic, Evidence, Magistrates
Representations that the Intoximeter or other device used for measuring breath alcohol, should not have been approved or that the Secretary of State should have withdrawn approval in respect of the device should be addressed to the Secretary of State and not to the court. While an approval subsisted it is 'wholly immaterial to mount a challenge to the general reliability of these approved devices in individual prosecutions brought under the Act'. There is no provision for discovery of documents for a summary trial in a magistrates' court and section 97(1) should not be used as a disguised attempt to obtain discovery. The summons issued to compel the manufacturer to produce documents relating to the functioning and design of the breath-testing instrument was quashed as a "fishing expedition" and because the documents were not admissible per se because they would need an expert witness to interpret them.
Magistrates Courts Act 1980 97(1)
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Armagas Ltd v Mundogas SA ('The Ocean Frost') [1985] 1 Lloyd's Rep 1
1985
CA
Goff LJ, Staughton J
Evidence, Torts - Other, Agency
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.
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."
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 Rhesa Shipping Co SA v Edmonds (The Popi M); HL 16-May-1985 - [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyds Rep 1; [1985] UKHL 15

 
 Rhesa Shipping Co SA v Edmonds (The Popi M); HL 16-May-1985 - [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyds Rep 1; [1985] UKHL 15
 
Taylor v Chief Constable of Chester [1986] 1 WLR 1479; Times, 28 October 1986
28 Oct 1986


Evidence
Evidence as to the content of a video recording might be admissible even though the tape itself was not made available.
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Shearson Lehman Inc v Maclaine, Watson Ltd [1987] 1 WLR 480
1987
CA
Lloyd, Nichols LJJ
Evidence, Damages
The court considered an application for an interim award of damages. Held: Lloyd LJ said: “Something more than a prima facie case is clearly required; but not proved beyond reasonable doubt. The burden is high. But it is a civil burden on the balance of probabilities, not a criminal burden." The court is not required to be sure in the sense of being satisfied beyond reasonable doubt and being able to exclude every possibility of failure because the order for interim payment may be reversed at trial.
Rules 11 and 12 of Order 29 should be read together to permit the court to make an order for interim payment where it is satisfied that, if the action proceeded to trial, the plaintiff would obtain judgment either for substantial damages under r.11(1)(c) or for substantial sum of money apart from damages within r.12, even though thought not to be certain which

 
Naylor v Preston Health Authority [1987] 1 WLR 958; [1987] 2 All ER 353
1987
CA
Sir John Donaldson MR
Litigation Practice, Evidence
The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are "playing with all the cards face up on the table" the Master of the Rolls considered that there is 'a duty of candour resting on the professional man' and he concluded: "Accordingly the court has to have regard to all the circumstances although, in the nature of things, they are likely to be different in medical cases when contrasted, for example, with those involving barristers, solicitors, surveyors or accountants. The exercise of discretion has to be approached on the basis of the philosophy that the basic objective is always the achievement of true justice, which takes account of time, money and what can only be described as the anguish of uncertainty, as well as of a just outcome. It has to be exercised on the basis that the procedure of the courts must be, and is, intended to achieve the resolution of disputes by a variety of methods, of which a resolution by judgment is but one, and probably the least desirable. Accordingly anything which enables the parties to appreciate the true strength or weakness of their positions at the earliest possible moment and at the save time enables them to enter upon fully informed and realistic discussions designed to achieve a consensual resolution of dispute is very much in the public interest. "
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Tay Bok Choon v Tahanson Sdn Bhd [1987] 1 WLR 413; [1987] BCLC 472
1987
PC
Lord Templeman
Company, Commonwealth, Evidence, Litigation Practice
A participant in the company was given the right to be involved in the management until a change should become necessary for some other reason.
In cases of fraud, direct evidence may be rare and circumstantial evidence may have to suffice,
Lord Templeman said: "In civil proceedings the trial judge has no power to dictate to a litigant what evidence he should tender. In winding up proceedings the trial judge cannot refuse to read affidavits which have been properly sworn, filed and produced to him unless some opposing party has applied for the attendance for cross-examination of the deponent and that application has been granted and the deponent does not attend. The court cannot give a direction about evidence unless one of the litigants desires such direction to be made. Of course a judge may indicate to a petitioner that unless he calls oral evidence or applies to cross-examine the deponents of the opposition so as to prove a disputed fact, his petition is likely to fail. The judge may equally indicate to a respondent that unless he calls oral evidence or applies to cross-examine the petitioner's deponents for the purposes of disproving an allegation made by the petitioner, then the petitioner is likely to succeed. At the end of the day the judge must decide the petition on the evidence before him. If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent's affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The judge must then decide the fate of the petition by consideration of the undisputed facts.
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Rush and Tompkins Ltd v Greater London Council and Another [1989] AC 1280; [1988] UKHL 7; [1988] 3 All ER 737
1988
HL
Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley
Evidence, Costs
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the client, the respondent. The claim was compromised but without disclosing the detail underlying the sum agreed. The sub-contractor then claimed an additional sum, and sought disclosure of documents which had passed between the parties. The appellants claimed the protection of the 'without prejudice' rule. Held: The Court will not permit the phrase to be used to exclude an act of bankruptcy or to suppress a threat if an offer is not accepted. The exception for offers expressly made "without prejudice except as to costs" was recognised to be based on an express or implied agreement between the parties.
Lord Griffiths said: "The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence 'without prejudice' to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase 'without prejudice' and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission. I cannot therefore agree with the Court of Appeal that the problem in the present case should be resolved by a linguistic approach to the meaning of the phrase ‘ without prejudice ’. I believe that the question has to be looked at more broadly and resolved by balancing two different public interests namely the public interest in promoting settlements and the public interest in full discovery between parties to litigation."
However: "These cases show that the rule is not absolute and resort may be had to the 'without prejudice' material for a variety of reasons when the justice of the case requires it. It is unnecessary to make any deep examination of these authorities to resolve the present appeal but they all illustrate the underlying purpose of the rule which is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement."
Lord Griffiths said: "The 'without prejudice' rule is "a rule governing the admissibility of evidence founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish". To try to identify admissions and withhold protection from the rest of without prejudice communications would be contrary to the objective of giving protection to the parties "to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts."
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[ Bailii ]
 
Indian Oil Corporation v Greenstone Shipping SA [1988] QB 345; [1987] 3 All ER 893
1988

Staughton J
Evidence
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 entitled. Held: The court discussed the modern meaning of the rule of evidence known in Latin as 'omnia praesumuntur contra spoliatorem' (everything is presumed against a destroyer (of evidence)): "If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent possible in the circumstances."
"The analogy with Armory v Delamirie . . is striking. If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances." (Staughton J)
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Main v Andrew Wormald Ltd 1988 SLT 141
1988

The Lord Justice-Clerk (Lord Ross), Lord Dunpark, Lord McDonald
Evidence
A reclaiming motion challenged the entitlement of the medical witnesses in a case relating to asbestosis to rely on epidemiological literature. Held: "In my opinion, the medical witnesses in this case were entitled to refer to medical literature, and in particular they were entitled to refer to published papers by epidemiologists even though they themselves were not epidemiologists. All the medical witnesses in this case were experts in chest disorders. They were there thus fully entitled to have regard to medical literature bearing upon that subject. Of course, where a medical witness has made reference to the published views of epidemiologists, it must be kept in mind that these views of epidemiologists have not been subjected to testing by cross examination." After referring to Abadom: "I am accordingly satisfied that the medical witnesses were entitled to refer to the views of epidemiologists, and to adopt their views. On the other hand, it must be borne in mind that the authors of the articles were not examined as witnesses and were not cross examined. Furthermore, as Lord President Cooper observed in Davie, except in so far as a witness had adopted a passage from a published work, the court cannot rely upon the published work for the purpose of displacing or criticising the witness' testimony. Moreover, where a witness has adopted a particular passage from a published work, the court is entitled to determine whether the reasoning in the particular passage appears to be reasonable and convincing or not."

Lord Dunpark: "The pursuers' doctors' evidence, based, it seems to me, primarily if not solely upon these epidemiological studies, was that the greater the exposure to asbestos dust inhalation, the greater the risk of contracting lung cancer; but that does not answer the crucial question, namely, whether asbestos exposure per se is a likely cause of lung cancer in the absence of any lung damage which could be associated with asbestos inhalation. Nevertheless, I am of opinion that the relationship between asbestos exposure and lung cancer was sufficiently within the field of the pursuers' doctors to enable them professionally to refer to studies on this subject; but the real question is whether they drew the correct inference from them."
Lord McDonald: "It is, in my opinion, clear that an expert witness may in the course of his evidence, make reference to passages from a published work and adopt these as part of his evidence [...]. There are, however, limits to this practice. One is that the expert witness must first have testified specifically to his own direct experience in the field in question. Having done that he is entitled to supplement his evidence by reference to recognised published works [...]. It is essential, however, that the introduction of the literature be preceded by firm evidence from the expert as to his personal experience in the specialist field concerned. If this is not so there is a real danger that the literature becomes the primary evidence and is given a status it should not acquire unless spoken to by a witness directly responsible for its contents."
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Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2) [1988] 1 WLR 16
1988
HL
Lord Bridge of Harwich
International, Litigation Practice, Evidence
Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC "shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission". In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. document: had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties. Held: The documents were supplied with the authority of the ITC. Lord Bridge of Harwich considered articles 24 and 27.2 of the Vienna Convention, saying: "Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings."
Vienna Convention on Diplomatic Relations 24 27 - International Tin Council (Immunities and Privileges) Order 1972
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Hughes v Liverpool City Council Unreported Transcript, 11 March 1988
11 Mar 1988
CA

Evidence

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 Regina v Governor of Pentonville Prison, Ex Parte Osman; QBD 30-Mar-1988 - [1990] 1 WLR 277

 
 Ng Chun Pui v Lee Chuen Tat; PC 24-May-1988 - [1988] SJ 1244; [1988] RTR 298; [1988] UKPC 7
 
Rush and Tomkins Ltd v Greater London Council [1989] AC 1280; [1988] 3 WLR 939; [1988] 3 All ER 737; [1988] UKHL 7
3 Nov 1988
HL
Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley
Evidence, Litigation Practice, Construction
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 agreement so that it could pursue its own action. The council said that the document was covered by the without prejudice rule. Held: When looking at without prejudice negotiations to decide on admissibility, it would be wrong to isolate admissions before admitting the rest. That would not allow the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts. The rule applies "to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence."
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[ Bailii ]

 
 Regina v Minors, Regina v Harper; CACD 14-Dec-1988 - [1989] 1 WLR 441 CA
 
Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665
1989
CA
Dillon, Neill, Mustill LJJ
Evidence
The plaintiff was arrested at a demonstration, charged with obstructing the highway and convicted before the magistrates. His conviction was quashed by the Crown Court on appeal. He sued for assault, unlawful arrest, false imprisonment and malicious prosecution. He sought discovery of documents showing any convictions of or adverse disciplinary findings against the police witnesses. Held: He was not entitled to such discovery as the evidence would not be admissible.
Dillon LJ said: "I apprehend that Lord Denning MR [in Mood Music] was thinking of civil cases tried by a judge alone. Where there is a jury the court must be more careful about admitting evidence which is in truth merely prejudicial, than is necessary where there is a trial by a judge alone who is trained to distinguish between what is probative and what is not."
Neill LJ said: "Evidence of 'similar facts' is relevant both in criminal and in civil cases to rebut defences such as accident or coincidence or sometimes to prove a system of conduct. Such evidence is not admissible, however, merely to show that the party concerned has a disposition to commit the conduct alleged."
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 H v H (Minor) (Child Abuse: Evidence); Re H (A Minor); Re K (Minors) (Child Abuse: Evidence); CA 1989 - [1990] Fam 86; [1989] 2 FLR 313
 
Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co [1989] STC 520
1989
CA
Lord Tenterden CJ
Evidence
Lord Tenterden CJ said: "It has been carried further in the argument to-day, for it has been urged that the non-appearance of the prosecutor does not necessarily induce the conclusion of a consciousness at that time, that when the prosecution was originally instituted, he could have given no evidence to support it. That may be so. But the conduct of a party in a late period of a cause is a material circumstance, from which his motives at an earlier period may be inferred. Why might not the forbearance of Taylor to appear to give evidence at the trial, under the very peculiar circumstances of this case, raise an inference that his motive was a consciousness, that he had no probable cause for instituting the prosecution? The motives of parties can only be ascertained by inference drawn from facts. The want of probable cause is, in some degree, a negative, and the plaintiff can only be called upon to give some, as Mr. J. le Blanc, a most accurate Judge, says, slight evidence of such want. As then, slight evidence will do, why might not the circumstances of this case be left to the jury as grounds for a conclusion of fact?"
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Re State of Norway's Application (No 2) [1990] 1 AC 723
1989
HL
Lord Goff of Chieveley
Estoppel, International, Evidence
The government of Norway sought evidence here to support a claim for tax in Norway. Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim will not be enforced here, where the claimant is asserting a sovereign right or where the central interest of the claimant is governmental in nature, however, Lord Goff said: "It is of importance to observe that that rule is limited to cases of direct or indirect enforcement in this country of the revenue laws of a foreign state. It is plain that the present case is not concerned with the direct enforcement of the revenue laws of the State of Norway. Is it concerned with their indirect enforcement? I do not think so. It is stated in Dicey & Morris, at p. 103, that indirect enforcement occurs (1) where the foreign state (or its nominee) in form seeks a remedy which in substance is designed to give the foreign law extraterritorial effect, or (2) where a private party raises a defence based on the foreign law in order to vindicate or assert the right of the foreign state. I have been unable to discover any case of indirect enforcement which goes beyond these two propositions. Even so, since there is no authority directly in point to guide me, I have to consider whether a case such as the present should nevertheless be held to fall foul of the rule. For my part, I cannot see that it should. I cannot see any extraterritorial exercise of sovereign authority in seeking the assistance of the courts of this country in obtaining evidence which will be used for the enforcement of the revenue laws of Norway in Norway itself."
Lord Goff discussed the phrase 'civil or commercial matters', and said of itsuse in the 1856 Act: "Here we find the first mention in an Act of Parliament, at least in this context, of the expression "civil or commercial matter." It is plain that here the word "matter" is used as referring to the relevant proceedings; because in section 1 the "matter" is required (consistently with the long title and section 2 of the Act) to be pending before the foreign court or tribunal. This reinforces the natural inference that, in section 1 of the Act, the expression "civil matter" is being given no restricted meaning, and would be understood in this country as referring to civil, as opposed to criminal, proceedings. It is true that this gives no weight to the words "or commercial" so far as the law of this country is concerned: but it is not surprising to find these words added in relation to a jurisdiction which will be invoked by courts or tribunals in foreign countries, many of which differentiate between civil and commercial matters."
Evidence (Proceedings in Other Jurisdictions) Act 1975 - Foreign Tribunals Evidence Act 1856
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