Category: Evidence

Director 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 said 00.13 am, but the time display on the machine read 23:00. Part of the discrepancy was explained by the fact that, as the print-out made plain, the machine was set to GMT. But there was no explanation for the balance of the difference.
Held: The failure of an internal computer clock was not a sufficient indication of a computer malfunction to make a reading from a breath analyzing machine inadmissible in evidence. The rule in section 16 is a specialist exception to the rule against admission of hearsay.

Judges:

Lord Goff of Chieveley, Lord Mustill, Lord Steyn, Lord Hoffmann, Lord Clyde

Citations:

Times 21-Feb-1997, [1997] UKHL 4, [1997] 1 All ER 737, [1997] 1 WLR 295, [1997] 2 Cr App Rep 155, [1997] Crim LR 522

Links:

House of Lords, Bailii

Statutes:

Police and Criminal Evidence Act 1984 69, Road Traffic Act 1988 7(1), Road Traffic Offenders Act 1988 16, Magistrats’ Court Act 1980 97(1)

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Regina v Skegness Magistrates’ Court ex parte Cardy 1985
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device used for measuring breath alcohol, should not have been approved or that the Secretary of State should have withdrawn approval in respect of the device should be addressed to the Secretary of . .

Cited by:

Cited – Haw, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 8-May-2006
The applicant had demonstrated continuously against the war in Iraq from the pavement outside the House of Commons. The respondent sought an order for his removal under the law preventing demonstrations near Parliament without consent which was . .
Lists of cited by and citing cases may be incomplete.

Evidence, Road Traffic

Updated: 31 May 2022; Ref: scu.158880

Hammersmith Hospitals NHS Trust and others v Troup Bywaters and Anders (a Firm): CA 25 May 2001

Correctly construing apparently sceptical expert witness as to ‘reasonable body of professional opinion’ in a fact rich case.

Judges:

Lord Justice Brooke, Lord Justice Sedley And Lord Justice Dyson

Citations:

[2001] EWCA Civ 793

Links:

Bailii

Jurisdiction:

England and Wales

Evidence, Professional Negligence, Litigation Practice

Updated: 31 May 2022; Ref: scu.147571

Masquerade Music Ltd and Others v Bruce Springsteen: CA 10 Apr 2001

The respondent was a composer who sought to restrict the import of CDs containing his music into the UK. The appellants responded putting him to strict proof of his title. The title included assignments from a partnership to limited companies, but the original documents were no longer available. He sought to have admitted in evidence secondary evidence. The appellants submitted that before that secondary evidence could be admitted, the plaintiff should have shown that he had taken executed a diligent search for the document.
Held: At its highest, the best evidence rule was not an absolute rule. This is so particularly where the document was not in the possession of the party. It is now for the court to look at all the circumstances, and to admit secondary evidence accordingly.

Judges:

Lord Justice Waller Lord Justice Laws And Lord Justice Jonathan Parker

Citations:

[2001] EWCA Civ 5122, [2001] EWCA Civ 513

Links:

Bailii

Statutes:

Copyright Act 1956 36(3)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Wayte 1983
. .
Cited – Regina v Governor of Pentonville Prison, Ex Parte Osman QBD 30-Mar-1988
The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Evidence

Updated: 31 May 2022; Ref: scu.147508

Khan, Khan v Khan (Evidence : Expert Evidence): FTTPC 26 Apr 2018

Applicants are brothers: Respondent is the wife of the third (deceased) brother. The property in which Respondent and her children live was registered in her husband’s name only. Applicants applied to enter a restriction on the grounds that they had a beneficial interest in the property by virtue of a written agreement and/or a resulting trust. Respondent put them to proof of the validity of the written agreement and the contributions. There was no expert hand writing evidence at trial. Late application by Respondent after the hearing but before the decision to adduce expert evidence resulted in Applicant producing their own expert evidence critical of the Respondent’s expert, who subsequently withdrew his report. HELD finding was that each brother had a 1/3rd interest.

Citations:

[2018] UKFTT 318 (PC)

Links:

Bailii

Jurisdiction:

England and Wales

Evidence

Updated: 30 May 2022; Ref: scu.623636

Regina (Crown Prosecution Service) v Registrar-General of Births, Deaths and Marriages and Another: CA 7 Nov 2002

The prisoner awaited trial. Among the prosecution witnesses was his partner. They now sought to marry. The applicant sought to prevent the marriage on the basis that this would make her non-compellable as a witness.
Held: Public policy considerations did not apply to prevent the marriage. The duty on the registrar to issue a certificate was absolute. Public policy might provide a reason, but did not in this case. Entering into a lawful marriage could not be an attempt to pervert the course of justice. The right to marry is a human right, and it was not for the prison governor to exercise his discretion to prevent it, since such a discretion could not be exercised save on public policy grounds.

Judges:

Dame Butler-Sloss President, Waller LJ, Sir Philip Otton

Citations:

Times 14-Nov-2002, Gazette 23-Jan-2003

Statutes:

Marriage Act 1949 27A(3) 31(2), European Convention on Human Rights 12

Jurisdiction:

England and Wales

Family, Prisons, Evidence, Human Rights

Updated: 30 May 2022; Ref: scu.178142

Ali Shipping Corporation v Shipyard Trogir: CA 19 Dec 1997

In the case of an arbitration, there is a strong contractual presumption in favour of confidentiality and against non-disclosure. But this may be overridden by a court where necessary to protect a party’s rights against a third party or in other exceptional circumstances where justice requires.

Judges:

Beldam, Potter, Brooke LJJ

Citations:

[1997] EWCA Civ 3054, [1998] CLC 566, [1999] 1 WLR 314, [1998] 2 All ER 136, [1998] 1 Lloyds Rep 643

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Arbitration

Updated: 29 May 2022; Ref: scu.143453

Moylett v Geldof and Another: ChD 14 Mar 2018

Admissibility of parts of the Claimant’s expert report.
Held: ‘in so far as this report deals with whether this music was more likely to be composed on a guitar or on a piano, I consider that it is admissible and relevant expert evidence which may well be the subject of a reply. In so far as it expresses what Mr Protheroe was told by the two guitarists, it is not relied on as expert evidence and does not need an expert reply.’
As to Hoyle v Rogers: ‘The ultimate message from that decision is that it is much preferable for the court, rather than picking through expert reports, seeking to excise individual sentences and engaging in an editing exercise, to allow the trial judge to consider the report in its entirety, assuming that it is genuine expert evidence, and to attach such weight as it sees fit at the trial to those passages in the report.’

Judges:

Carr J

Citations:

[2018] EWHC 893 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rogers and Another v Hoyle QBD 23-May-2013
The claimant’s relative had died in an air accident. They sought damages from the defendant pilot, seeking to rely upon the official report of the Air Accident Investigation Bureau The court was asked as to its admissibility.
Held: It was . .
Cited – Hoyle v Rogers and Another CA 13-Mar-2014
The appellant had been pilot in a private plane which crashed leading to the passenger’s death. He now challenged the admission of an expert’s report, which, he said, went beyond the proper range of such a report.
Held: The report was . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 29 May 2022; Ref: scu.625481

Routestone Limited v Minories Finance Limited (Formerly Johnson Matthey Bankers Ltd); Knight Frank and Rutley (a Firm): CA 14 Nov 1996

The judge should never lose sight of the central truths that the ultimate decision is for the court and that all questions of relevance and weight are for the court.

Judges:

Butler-Sloss LJ

Citations:

[1996] EWCA Civ 964, (1997) 21 EG 148

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Routestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .

Cited by:

Cited – Designers Guild Limited v Russell Williams (Textiles) Limited PatC 14-Jan-1998
The defendant denied that it had copied the plaintiff’s designs.
Held: There was sufficient evidence of copying. It was wrong to dissect a work, but rather the court should look at the matter as a whole. . .
Lists of cited by and citing cases may be incomplete.

Negligence, Evidence

Updated: 29 May 2022; Ref: scu.140831

Christopher James Jolly v Director of Public Prosections: Admn 31 Mar 2000

At trial in the magistrates court, the prosecution had failed to bring evidence that the computer used to analyse the defendant’s breath alcohol was in proper working condition. The defendant submitted no case to answer, and the magistrates allowed the prosecutor to re-open his case to put the evidence. The defendant appealed.
Held: The appeal was refused. The court reviewed the cases describing when a prosecutor might be allowed to re-open his case, and this case fell within the rules.
Kennedy LJ: ‘In my judgment any trial court must recognise that it is the duty of the prosecution to call its evidence before closing its case. But it is now beyond argument that there is a general discretion to permit the calling of evidence at a later stage, which extends in a Magistrates’ Court up to the time when the Bench retires.’

Judges:

Kennedy LJ, Butterfield J

Citations:

[2000] EWHC Admin 316

Links:

Bailii

Citing:

Cited – Regina v Pilcher 1974
The prosecutor had closed his case, and the defendant had presented some evidence. It became clear that the prosecutor had failed to present evidence on one element, and the defendant appealed his conviction after the prosecutor had been allowed to . .
Cited – Regina v Tate CACD 1977
At the close of a prosecution case for driving with excess alcohol, the appellant stated that he would not give or call evidence. He then submitted that the jury should be directed to consider only the admissible evidence of the analyst called who . .
Cited – Regina v Sheppard HL 1993
Where the prosecutor wishes to rely on evidence set out in a document produced by a computer, there must be affirmative evidence as to the computer’s reliability in accordance with the requirements of Section 69. It can be either oral evidence or a . .
Cited – Morris v Matthews CA 1981
On a prosecution for theft, the prosecution failed to read a statement from the owner of the property, which statement had been served on the defence pursuant to Section 9 of the Criminal Justice Act 1967. It was submitted that there was no case to . .
Cited – MacDonald v Skelt QBD 1985
At the close of the prosecution case, it was submitted that the defendant had no case to answer because there was insufficient evidence that the blood specimen taken from him and that analysed by the Scientific Officer were the same. The Justices . .
Cited – James v South Glamorgan County Council 1992
On trial of a charge of supplying a motor vehicle in an un-roadworthy condition, a prosecution witness (the person to whom the vehicle was supplied) had difficulty in locating the Court House. Before he arrived, the prosecution had closed its case, . .
Cited – Regina v Vincent Munnery CACD 1992
On a charge of burglary, the prosecution had not brought evidence that the appellant was one of those who carried cartons out of Liberty’s department store. The court allowed the prosecutor to re-open his case to present that evidence.
Held: . .
Cited – Regina v Francis CACD 1990
The prosecution had omitted to bring evidence that the person standing at No.20 on an identification parade was the appellant. The defence complained that the prosecutor had been allowed to re-open his case.
Held: ‘The discretion of the judge . .
Cited – Antonio Leeson v Haringey Justices and Director of Public Prosecutions Admn 26-Jul-1999
The prosecutor on a charge of driving with excess alcohol had failed to adduce evidence as to the calibration of the intoximeter. The magistrates allowed him to re-open his case. The defendant appealed.
Held: The appeal was dismissed: ‘If the . .
Cited – Regina v Pydar Justices Ex Parte Foster QBD 23-May-1995
There was a case to answer on an OPL charge despite the computer readout not being handed to Justices. It was in evidence. Evidence referred to but not challenged by the defendant can be relied upon by Justices in making their decision. The court . .
Cited – Regina v Aylesbury Crown Court ex parte Lait Admn 13-Mar-1998
The defendant sought judicial review of the crown court’s decision to allow the prosecutor to re-open his case even after defence counsel had begun his summing up.
Held: The court ‘did step outside the reasonable bounds of its discretion in . .

Cited by:

Cited – Tuck v Vehicle Inspectorate Admn 24-Mar-2004
The defendant appealed a conviction for exceeding the gross permitted weight on a goods vehicle. The magistrates having heard the case, the defendant submitted there was no case to answer, the prosecution having failed to bring evidence as to the . .
Cited – Traves, Regina (on the Application Of) v Director of Public Prosecutions Admn 30-Jun-2005
The defendant appealed conviction involving allegations that he was driving. He was sat at the wheel of a vehicle being towed by means of a rigid steel bar. He denied that he was driving, but had both steered and braked.
Held: The magistrates . .
Lists of cited by and citing cases may be incomplete.

Magistrates, Evidence

Updated: 29 May 2022; Ref: scu.140130

The Zamora: PC 1916

Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogaive involves any power to prescribe or alter the law administered in Courts of Common Law or Equity . . Those who are responsible for the national security must be the sole judge of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public.’

Judges:

Lord Parker of Waddington

Citations:

[1916] 2 AC 77

Jurisdiction:

England and Wales

Cited by:

Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Evidence, Constitutional

Updated: 28 May 2022; Ref: scu.238151

Holyoake and Another v Candy and Others: ChD 27 Feb 2017

Applications for further disclosure on the grounds of collateral waiver.

Judges:

Nugee J

Citations:

[2017] EWHC 387 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Holyoake and Another v Candy and Others ChD 27-Jul-2016
The claimants alleged several torts had been involved in a substantial fraud on them by means of a funding loan. . .
See Also – Holyoake and Another v Candy and Others ChD 29-Nov-2016
Application by the Defendants for security for costs. . .
See Also – Holyoake v Candy and Another QBD 24-Jan-2017
The claimant sought to have access to his personal information held by the defendant. The defendant relied upon the legal professional privilege exemption. . .

Cited by:

Appeal from – Candy and Others v Holyoake and Another CA 28-Feb-2017
Appeal against grant of ‘notification injunction’ . .
See Also – Candy v Holyoake and Others QBD 2-Mar-2017
Mr Candy claimed remedies for what he alleged were completed or threatened wrongs in the form of breach of confidence, misuse of private information, and breach of the Data Protection Act 1998 (‘DPA’) against five defendants, one of whom had filmed . .
See Also – Candy v Holyoake and Others (No 2) QBD 22-Nov-2017
. .
See Also – Holyoake and Another v Candy and Others ChD 21-Dec-2017
. .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 26 May 2022; Ref: scu.593123

Rogers and Another v Hoyle: QBD 23 May 2013

The claimant’s relative had died in an air accident. They sought damages from the defendant pilot, seeking to rely upon the official report of the Air Accident Investigation Bureau The court was asked as to its admissibility.
Held: It was admissible.
Leggatt J said: ‘It is not, however, the function of an expert to express opinions on disputed issues of fact which do not require any expert knowledge to evaluate. However, as the judge observed, it is common to find in many expert’s reports opinions of that character, which are not helpful and to which the court would not have regard. As to those he thought it preferable: ‘to treat this as a question of weight rather than admissibility, particularly since there is no clear point at which an expert’s specialised knowledge and experience ceases to inform and give some added value to the expert’s opinions. It is a matter of degree. The more the opinions of the expert are based on special knowledge, the greater (other things being equal) the weight to be accorded to those opinions.’
Insofar as an expert’s report does no more than opine on facts which require no expertise of his to evaluate, it is inadmissible and should be given no weight on that account. But, as the judge also observed, there is nothing to be gained, except in very clear cases, from excluding or excising opinions in this category. I agree with what he said in para 117 of his judgment:
‘Such an exercise is unnecessary and disproportionate especially when such statements are intertwined with others which reflect genuine expertise and there is no clear dividing line between them. In such circumstances, the proper course is for the whole document to be before the court and for the judge at trial to take account of the report only to the extent that it reflects expertise and to disregard it in so far as it does not. As Thomas LJ trenchantly observed in Secretary of State for Business Enterprise and Regulatory Reform v Aaron [2008] EWCA Civ 1146 at para 39: ‘It is my experience that many experts report views on matters on which it is for the court to make its decision and not for an expert to express a view. No modern or sensible management of a case requires putting the parties to the expense of excision; a judge simply ignores that which is inadmissible’.’
The judge concluded that the whole of the Report was admissible, it being a matter for the trial judge to make use of the Report as he or she thought fit. Even if he had concluded that it contained some inadmissible material he would not have thought it sensible to engage in an editing exercise. The trial judge should see the whole report and leave out of account any part of it that was inadmissible.
Subject to the second and third grounds of appeal, I agree with this conclusion. It is not apparent to me that any part of the Report should be regarded as simply expressing an opinion on matters of fact (as opposed to recording evidence) in relation to which the expertise of the AAIB has no relevance. But even if any part of the Report was (or proves on close analysis hereafter) to have that character, the correct approach is as outlined by the judge.’

Judges:

Leggatt J

Citations:

[2013] EWHC 1409 (QB), [2014] 3 WLR 148, [2015] 1 QB 265

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hoyle v Rogers and Another CA 13-Mar-2014
The appellant had been pilot in a private plane which crashed leading to the passenger’s death. He now challenged the admission of an expert’s report, which, he said, went beyond the proper range of such a report.
Held: The report was . .
Cited – Moylett v Geldof and Another ChD 14-Mar-2018
Admissibility of parts of the Claimant’s expert report.
Held: ‘in so far as this report deals with whether this music was more likely to be composed on a guitar or on a piano, I consider that it is admissible and relevant expert evidence which . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 26 May 2022; Ref: scu.510035

Regina v Secretary of State for Home Department ex parte Finninvest SPA: Admn 25 Oct 1996

The appellant sought leave to appeal to the House of Lords. They certified three questions, as to whether the word ‘evidence’ in the 1990 Act has the same or a wider meaning than in the 1975 Act, whether making an illicit contribution to a political party was a political offence within the 1959 convention, and was it a political offence per se. Nevertheless the questions were each borderline, and leave was refused.

Judges:

Lord Justice Simon Brown, Mr. Justice Gage

Citations:

[1996] EWHC Admin 147, [1996] EWHC Admin 147

Links:

Bailii

Statutes:

Criminal Justice (International Co-operation) Act 1990, Evidence (Proceedings in Other Jurisdictions) Act 1975, European Convention on Mutual Assistance in Criminal Matters 1959 Art 2

Citing:

Cited – In re Westinghouse Uranium Contract HL 1978
‘The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested’ Lord Fraser said: ‘in judging the nature of the letters rogatory . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 25 May 2022; Ref: scu.136695

Unilever Plc v The Procter and Gamble Company: PatC 24 Feb 1999

Representatives of the Defendant company were said to have asserted, during an expressly ‘without prejudice’ meeting, that the plaintiff’s marketing of its product infringed the Defendant’s patent and threatened to bring an action for infringement. The plaintiff, relying on the statements made at the meeting, brought proceedings against the Defendant under section 70 of the Patents Act 1977 for threatening the plaintiff with proceedings for infringement of the patent.
Held: The overriding principal of without prejudice negotiations meant that disclosure in patents negotiations of perceived strengths and weaknesses was not to be used against a party. This is to be even more so under the new litigation regime. In a threat action, it does not matter that the threat may be veiled or covert, conditional or future. Nor does it matter that the threat is made in response to an enquiry from the party threatened.

Judges:

Laddie J

Citations:

Times 18-Mar-1999, [1999] EWHC Patents 250, [1999] FSR 849

Links:

Bailii

Statutes:

Patents Act 1977 70

Jurisdiction:

England and Wales

Cited by:

Appeal from – Unilever 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 . .
Cited – L’Oreal (UK) Limited and Another v Johnson and Johnson and Another ChD 7-Mar-2000
The claimant appealed against an order striking out their threat action for trade mark infringement, in respect of the words ‘No Tears’ when used for children’s shampoo.
Held: The court had to consider both the letter and the surrounding . .
See Also – Unilever 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 . .
Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice, Evidence

Updated: 23 May 2022; Ref: scu.135852

Regina v Chauhan: CACD 1981

Evidence of a complainant’s distress is not admissible unless the complainant is unaware of being observed, and if the distress is exhibited at the time of, or shortly after, the offence itself, or in circumstances which appear to implicate the accused. ‘In normal cases, however, the weight to be given to distress varies infinitely, and juries should be warned that, although it may amount to corroboration they must be fully satisfied that there is no question of it having been feigned’

Citations:

[1981] 73 Crim App R 232

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Venn CACD 1-Feb-2003
The defendant appealed convictions for sexual assault against four young girls.
Held: The admissibility of ‘similar fact’ evidence depends upon the degree of its relevance. If only suggests propensity it is inadmissible. If it goes further and . .
Applied – Regina v Romeo CACD 9-Sep-2003
The defendant appealed his conviction for sex offences, saying the court had misdirected the jury as to the weight to be given to the distress shown by the complainant as corroboration of her allegation.
Held: Old cases should be looked at . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 23 May 2022; Ref: scu.181005

Regina 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 which tend to show that he has previously committed some criminal offence. A defendant is always entitled to call evidence of his own good character or other evidence ‘in disproof of his own guilt’ of the offence charged against him. The test is whether the evidence is relevant or not to the question of guilt. The evidence was relevant ‘if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other’ When there is more than one defendant, the test of relevance must be applied strictly to avoid prejudice to a co-defendant.

Judges:

Evans LJ

Citations:

[1995] 2 Cr App Rep 589

Jurisdiction:

England and Wales

Citing:

Cited – Lowery 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 . .
Cited – Regina 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 . .
Cited – Regina v Bracewell CACD 1978
When there is more than one defendant in a case, the test of the relevance of an accused’s previous convictions before their admission into evidence, must be strictly applied ‘for if irrelevant and therefore inadmissible evidence is admitted, the . .

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice

Updated: 22 May 2022; Ref: scu.189886

Fallon v MGN Ltd: QBD 10 Apr 2006

The claimant sought damages in defamation.
Held: Questions as to what inferences can be drawn from betting patterns when assessing a jockey’s motives are not within the expertise of a racing-riding expert witness.

Judges:

Eady J

Citations:

[2006] EWHC 783 (QB), [2006] EMLR 19

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Chase v Newsgroup Newspapers Ltd CA 3-Dec-2002
The defendant appealed against a striking out of part of its defence to the claim of defamation, pleading justification.
Held: The Human Rights Convention had not itself changed the conditions for a plea of justification based upon reasonable . .

Cited by:

Cited – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Lists of cited by and citing cases may be incomplete.

Defamation, Evidence

Updated: 21 May 2022; Ref: scu.240425

Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft fur Schadlingsbekampfung mbH: 1976

(Supreme Court of South Africa (Appellate Division)) Wessels JA said: ‘[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.’

Judges:

Wessels JA

Citations:

1976 (3) SA 352

Jurisdiction:

England and Wales

Cited by:

Cited – Kennedy 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: 20 May 2022; Ref: scu.606456

Lowery 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 character and said that because of fear of K he had been unable to prevent the murder. K said that he had been under the influence of drugs and had been powerless to prevent L from killing the girl. Despite L’s objection, K was allowed to call a psychologist as to their respective personalities and, on that evidence, to invite the jury to conclude that it was less probable that K was the killer. They were both convicted. L unsuccessfully appealed to the Supreme Court of Victoria on the ground, inter alia, that the psychologist’s evidence ought not to have been admitted.
Held: Only in exceptionl circumstances can expert evidence be admissible as to the likelihood of the defendant’s veracity. The evidence of the psychologist was relevant in support of K’s case to show that his version of the facts was more probable than that put forward by the appellant. Accordingly the Privy Council dismissed the appeal. Evidence is relevant ‘if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other’. The Board approved a statement as to the law: ‘It is . . established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged; .. it is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person.’

Judges:

Morris L

Citations:

[1974] AC 85

Jurisdiction:

Australia

Cited by:

Approved – 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 . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Henry, 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 . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence, Commonwealth

Updated: 19 May 2022; Ref: scu.189882

Stafford v Director of Public Prosecutions: HL 1974

The House rejected the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their mind and not the effect that the evidence would have had on the mind of the jury. It would be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. Lord Kilbrandon said that the test to be applied by each member of the appellate court is: ‘Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?’ Viscount Dilhorne: ‘While . . the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].’

Judges:

Lord Kilbrandon, Viscount Dilhorne

Citations:

[1974] AC 878, [1973] 3 All ER 762, [1973] 3 WLR 719, (1974) 58 Cr App R 256

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Stafford CACD 1968
The court considered the admission of evidence which had become available only after the trial.
Held: ‘public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time would . .
Cited – Regina v Cooper (Sean) CACD 1969
The court considered its power to interfere with a jury’s verdict where a trial had been properly conducted: ‘every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this court will be very . .

Cited by:

Approved – Regina 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: . .
Appealed to – Regina v Stafford CACD 1968
The court considered the admission of evidence which had become available only after the trial.
Held: ‘public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time would . .
Cited – Pinfold, 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 . .
Cited – Kin-Hung v The Queen PC 11-Nov-1996
(Hong Kong) Despite the judge’s sympathetic directions as to the inadeqacy of the prosecution case, the defendant was convicted of two rapes.
Held: The test whether each member of an appellate court considers the verdicts ‘unsafe or . .
Cited – Kelvin Dial (otherwise called Peter), Andrew Dottin (otherwise called Maxwell) v The State PC 14-Feb-2005
(Trinidad and Tobago) Two defendants appealed against their convictions for murder. The principal witness who had identified them, had retracted his evidence, but the retraction had not been believed. He was then shown to have lied.
Held: The . .
Cited – Noye, Kenneth, Regina v CACD 22-Mar-2011
The prisoner appealed against his conviction for murder on reference from the CCRC. There were new doubts about the reliabiity of the expert forensic expert.
Held: The appeal was dismissed. Dr H’s evidence did not impinge on the essential . .
Cited – Dizaei v Regina CACD 16-May-2011
The defendant had been convicted of misconduct in a public office and doing acts with intent to pervert the course of justice. He now appealed saying that he could demonstrate that the principal witness was dishonest. The prosecution replied that . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 19 May 2022; Ref: scu.182511

Dubai Bank Ltd v Galadari: CA 1990

A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the purpose of advising his client and obtaining evidence and the solicitor has exercised skill and judgment in the selection.’

Judges:

Dillon LJ

Citations:

(1990) Ch 98

Jurisdiction:

England and Wales

Citing:

Cited – Chadwick v Bowman CA 1886
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against . .
See Also – Dubai Bank Ltd v Galadari (No 2) CA 1990
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the . .

Cited by:

Cited – Brown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
See Also – Dubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
See Also – Dubai Bank Ltd v Galadari and Others (No 5) 25-Jun-1990
A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions, International

Updated: 19 May 2022; Ref: scu.181214

Regina v Kansal: CACD 24 Jun 1992

K had been convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was required to deliver up to the Official Receiver or his trustee, contrary to section 354(2); and (b) he failed without reasonable excuse to account for the loss of a substantial part of his property or to give a satisfactory explanation of the manner of the loss, contrary to section 354(3). Large sums were involved-he obtained from the Halifax Building Society pounds 150,000 and pounds 116,250 on a false representation as to his income and that he was not bankrupt and that he did not have any judgment or proceedings for debt outstanding. Prior to these advances he was adjudged bankrupt. His wife later collected from his solicitor pounds 104,000 in cash, part of the monies advanced by the Building Society, and took it in a bin liner to India.. 2. At his trial in 1992 the prosecution, using section 433 of the 1986 Act brought evidence of answers given by him under compulsion in his bankruptcy proceedings and the trial judge ruled that these answers were not rendered inadmissible by virtue of section 31 of the Theft Act 1968 but were admissible under section 433.
Held: His appeal failed. There was no bar on a prosecution based upon evidence in the form of admissions which had been provided involuntarily under the Insolvency Act in public hearings in later Theft Act cases. The written record could be used in any later proceedings.
The Insolvency Act 1986 and its Rules not only permitted the examination of the bankrupt to take place but rendered any statement made in the course of that examination admissible in any trial. In those circumstances, with specific legislation directed to this issue, the protection provided under section 31 of the Theft Act 1968 was inapplicable:
‘The privilege from self-incrimination is abrogated in bankruptcy proceedings not by the opening words of section 31 of the Theft Act 1968, but by rule 6.175 of the Insolvency Rules 1986 made pursuant to section 412 of the act of 1986:
‘(1) The bankrupt shall at the hearing be examined on oath; and he shall answer all questions as the court may put, or allow to be put, to him . . (5) The written record may, in any proceedings (whether under the Act or otherwise) be used as evidence against the bankrupt of any statement made by him in the course of his public examination.’
Thereafter section 433 of the Act of 1986 renders the evidence admissible.’

Citations:

Gazette 24-Jun-1992, Gazette 15-Jul-1992, [1992] 3 All ER 844, [1993] QB 244

Statutes:

Theft Act 1968 31, Insolvency Act 1986 433, Insolvency Rules 1986 6.175

Jurisdiction:

England and Wales

Cited by:

Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
See Also – Regina v Kansal, on a Reference From the Criminal Cases Review Commission (2) CACD 24-May-2001
Once a case had been referred to the Court of Appeal by the Criminal Cases Review Commission, the court had to make a declaration, even if the case was very old. The effect of the 1998 Act on statute law was not retrospective, but where it affected . .
See Also – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Evidence, Insolvency, Crime

Updated: 19 May 2022; Ref: scu.87029

Regina 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 unreliable, that the behaviour pattern is significantly different from the norm, and that there is some evidence independent of the defendant of his suggestibility. The court emphasised ‘the need to have defined limits for the case in which expert evidence of the kind we have heard may be used. First the abnormal disorder must not only be of the type which might render a confession or evidence unreliable, there must also be a very significant deviation from the norm shown.’

Judges:

Lord Justice Roch

Citations:

Times 16-Feb-2000, [2000] EWCA Crim 3, 98/6926/27/28 SI

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina 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 . .
Cited – 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 . .

Cited by:

Cited – Regina v Smith CACD 2-Apr-2003
The defendant had been convicted of rape and of burglary with intent to rape. The only evidence was his confession. After other appeals failed, and he had been released, psychiatric reports were obtained. Each has concluded that there are serious . .
Approved – Pinfold, 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: 19 May 2022; Ref: scu.85437

Regina v Marylebone Magistrates Court ex parte Andrew Clingham: Admn 20 Feb 2001

The council received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough, and after investigating applied for an anti-social behaviour order. Some witness statements contained first hand evidence, but the application was primarily based on hearsay evidence contained in records of complaints received by the trust and in police crime reports with from allegations of verbal abuse and serious criminal activities including assault, burglary, criminal damage and drug dealing dating from April 1998 to December 2000. Hearsay evidence was served under the 1999 rules. The defendant said the proceedings were criminal.
Held: Hearsay evidence is admissible on an application for an anti-social behaviour order. There is nothing in the jurisdiction of Human Rights to make such evidence inadmissible in civil proceedings, and its admission would not automatically make a criminal trial unfair. The weight to be attached to such evidence must vary according to the circumstances, and the magistrates could sensibly look at the Civil Evidence Act considerations. Such evidence alone might be insufficient for an order, but it should have some weight in most proceedings.
The council sought an anti-social behaviour order against the applicant. He challenged the admission against him of hearsay evidence.

Judges:

Schiemann LJ, Poole J

Citations:

Times 20-Feb-2001, [2001] EWHC Admin 582

Links:

Bailii

Statutes:

Magistrates Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 681, Crime and Disorder Act 1998 1, Civil Evidence Act 1995 1 9(2), Human Rights Act 1998 3

Citing:

Appealed to – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .

Cited by:

Appeal from – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, Magistrates, Evidence

Updated: 19 May 2022; Ref: scu.79228

Arab Monetary Fund v Hashim and Others (Number 9): ChD 29 Jul 1994

There were two foreign defendants who were each liable to the plaintiff.
Held: The English court had jurisdiction to allocate the damages between them. Execution should not be stayed because the plaintiff should be allowed to retain the opportunity to commence that part of the proceedings, ie execution, in such jurisdiction as he thought fit.

Judges:

Chadwick J

Citations:

Times 11-Oct-1994, [1994] CLY 3555

Statutes:

Civil Liability (Contributions) Act 1978, Civil Evidence Act 1968 2 4 6

Cited by:

Cited – IS 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 . .
Cited – Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others CA 28-May-1999
The defendants having been found to have acted dishonestly to the tune of pounds 130,000,000 sought a stay of execution pending an appeal. The judge had found that the appeal was arguable. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence, Limitation

Updated: 17 May 2022; Ref: scu.77850

Anderson v Blashki: 1993

(Supreme Court of Victoria) The civil standard of proof applies to all findings of coroners although the graver the allegation, the more cogent must be the evidence.

Citations:

[1993] 2 VR 89

Jurisdiction:

Australia

Cited by:

Cited – Regina 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.

Commonwealth, Coroners, Evidence

Updated: 17 May 2022; Ref: scu.237534

F v Kennedy (No. 1): 1993

The evidence of a child who is not a competent witness is not admissible.

Citations:

1993 SLT 1277

Jurisdiction:

Scotland

Cited by:

Cited – Sanderson v McManus HL 6-Feb-1997
An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child’s best interests. The father appealed.
Held: The father could not appeal on a question of fact alone. There . .
Lists of cited by and citing cases may be incomplete.

Children, Evidence

Updated: 17 May 2022; Ref: scu.237537

Collins v London General Omnibus Company: 1893

The court adopted a narrow definition of when documents would be protected by legal professional privilege because of anticipated litigation. Will J postulating circumstances being such that ‘no reasonable person could doubt that an action would follow’, and Charles J defining a case in which litigation was reasonably apprehended as being one ‘when there is a high probability, amounting to certainty, that an action will ensue’.

Judges:

Wills J, Charles J

Citations:

(1893) 68 LT NS 831

Jurisdiction:

England and Wales

Cited by:

Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.195747

Regina v Mullins: 1848

Citations:

(1848) 3 Cox CC 526

Jurisdiction:

England and Wales

Cited by:

Applied – Regina v Beck CACD 1982
The defendant complained that the judge had failed to direct the jury about the dangers of relying upon the evidence of witnesses who, though not co-defendants, had their own conflicting interests. They also said that corroborative evidence should . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 16 May 2022; Ref: scu.191973

Cotton v James: 30 Jun 1830

The burden of proof can shift during the course of a trial. Silence in circumstances in which a party would be expected to answer might convert evidence into proof.

Citations:

(1830) 1 B and Ad 128, [1830] EngR 713, (1830) 1 B and Ad 128, (1830) 109 ER 735

Links:

Commonlii

Citing:

See Also – Cotton v James, Gent One and C 17-Jan-1829
In trespass for entering plaintiff’s dwelling-house and taking his goods on a plea justifying the trespass by proceedings under a commission of bankruptcy, and replication taking issue on the act of bankruptcy, the defendant is entitled to begn. . .
See Also – Cotton v James, Gent One, and C 18-Jan-1829
. .

Cited by:

Cited – Gibbs 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 . .
See Also – James, Gent, One and Co v Cotton 1831
. .
Lists of cited by and citing cases may be incomplete.

Evidence, Insolvency

Updated: 16 May 2022; Ref: scu.184695

Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co: CA 1989

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?’

Judges:

Lord Tenterden CJ

Citations:

[1989] STC 520

Jurisdiction:

England and Wales

Cited by:

Cited – Gibbs 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 . .
Appeal from – Regina 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 16 May 2022; Ref: scu.184707

Regina v Brackenbury: 1893

Judges:

Day J

Citations:

(1893) 17 Cox 628

Citing:

Not followed – Regina v Gavin 1888
The court excluded a statement made to a constable, who questioned his prisoner in a way that amounted to cross-examination. A constable has no right to ask questions without expressly saying that the answers cannot be relevant evidence. . .

Cited by:

Cited – Ibrahim 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.

Crime, Evidence

Updated: 16 May 2022; Ref: scu.184192

Fazil-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 eroded. The taped without prejudice conversation might have been taken to contain an admission by the claimant of the payment of andpound;10,000 although he continued in his pleadings to deny such payment, but that did not come within the exception to the rule.
Simon-Brown LJ said that: ‘I add only this. There are in my judgment 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 eroded.’

Judges:

Simon Brown, Balcombe, Peter Gibson LJJ

Citations:

25 February 1993 (unreported), Court of Appeal (Civil Division) Transcript No 205 of 1993, Times 19-Mar-1993

Jurisdiction:

England and Wales

Cited by:

Cited – 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, . .
Cited – Savings 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 . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Brunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
Cited – Brodie 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 . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice

Updated: 16 May 2022; Ref: scu.182473

Gamlen Chemical Co (UK) Ltd v Rochem Ltd: CA 4 Dec 1979

Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect subject to an undertaking to maintain its condition and to respect the solicitors’ lien. The first firm appealed.
Held: The practice embodied in the order was appropriate. Where a solicitor discharged himself, a mandatory order should be available. Legal professional privilege will not be upheld if the relevant document came into being as a step in a criminal or illegal proceeding.
Templeman LJ explained why the normal response of the court, when faced with a solicitor who has discharged himself in the course of litigation, even where the solicitor is entitled to discharge himself, is to order the solicitor to hand over the client’s papers to the client’s new solicitors, subject to an undertaking from the new solicitors to preserve the lien of the original solicitor. This course is usually adopted ‘in order to save the client’s litigation from catastrophe’.
Goff LJ stated: ‘the court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards and must bear in mind that legal professional privilege is a very necessary thing and is not lightly to be overthrown, but on the other hand, the interests of victims of fraud must not be overlooked. Each case depends on its own facts.’

Judges:

Goff and Templeman LJJ

Citations:

[1980] 1 WLR 614, [1980] 1 All ER 1049, [1983] RPC 1

Jurisdiction:

England and Wales

Citing:

Approved – Heslop v Metcalfe 1837
The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, . .
Cited – Hughes v Hughes 1958
Hodson LJ said: ‘There is no doubt that a solicitor who is discharged by his client during an action otherwise than for misconduct can retain any papers in the cause in his possession until the costs have been paid . . This rule applies, as the . .
Cited – Robins v Goldingham 1872
Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs. . .
Appeal from (Dicta approved) – Gamlen Chemical Co (UK) Ltd v Rochem Ltd 1983
Goulding J said: ‘For servants during their employment and in breach of their contractual duty of fidelity to their master to engage in a scheme, secretly using their master’s time and money, to take the master’s customers and employees and make . .

Cited by:

Cited – Ismail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
Cited – French v Carter Lemon Camerons Llp CA 3-Sep-2012
The appellant had instructed the defendant solicitors in litigation. On beginning to act in person she sought an order to require the solicitors to deliver the case papers to her. They asserted a lien on them until their account was paid. She now . .
Cited – Walsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.182182

Chow Yee Wah v Choo Ah Pat: HL 1978

When considering ‘the printed evidence’ the Court in Watt referred to a transcript of the evidence only. The disadvantage under which an appellate court labours in weighing evidence is even greater where all it has before it is the judge’s notes of the evidence and has to rely on such an incomplete record.

Judges:

Lord Fraser of Tullybelton

Citations:

[1978] 2 MJL 41

Jurisdiction:

England and Wales

Citing:

Cited – Watt (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 . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 16 May 2022; Ref: scu.182240

Derby and Co Ltd And Others v Weldon And Others (No 9): ChD 25 Jul 1990

The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and whether stored in the computer itself or in back-up files, was a document’ and ‘. . there can be no distinction in principle between the tape used to record a telephone conversation in Grant v Southwestern and County Properties Ltd, which was an ordinary analogue tape on which the shape of sound waves is, as it were, mimicked by the pattern of the chemical deposit on the tape, and a compact disc or digital tape on which sound, speech as well as music, is mapped by co-ordinates and recorded in the form of groups of binary numbers. And so no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analysed and recorded in a variety of media in binary language.’
The plaintiffs provided discovery by way of computer printouts. Some defendants sought access to the computer to obtain information about the transactions at issue. The plaintiffs resisted saying that the computer was not a document subject to discovery.
Held: The computer database was a document capable of discovered. However the actual discovery ordered would be limited to matter material to the action, and made subject to other conditions so as to protect the records.

Judges:

Mr Justice Vinelott

Citations:

[1991] 1 WLR 652, [1991] 2 All ER 901

Links:

lip

Jurisdiction:

England and Wales

Citing:

Cited – Grant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
See Also – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .
See Also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .
See Also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.

Cited by:

Cited – Victor Chandler International v Commissioners of Customs and Excise and another CA 8-Mar-2000
A teletext page can be a document for gaming licensing purposes. A bookmaker sought to advertise his services via a teletext page. His services were not licensed in this country, but the advertisements were. It was held that despite the . .
Cited – Alliance and Leicester Building Society v Ghahremani and others 1992
The court rejected a submission that Mr Justice Vinelott’s view as to the scope of the word ‘document’ was restricted to questions of discovery under the rules of court. He applied the extended meaning of a document described to the question of . .
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Cited – Your Response Ltd v Datateam Business Media Ltd CA 14-Mar-2014
The claimant employed the defendant to manage subscription lists for the claimant’s magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 16 May 2022; Ref: scu.177326

Grant v Southwestern and County Properties Ltd: ChD 1974

The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording was accordingly a document. Obiter, the court recognised the distinction between a verbatim tape-recording of a conversation and a summary of the note-taker’s recollection of a conversation with the other party to the litigation.
Walton J said: ‘it seems to me that the simplest and most foolproof method of ‘inspection’ in these cases is for the party giving discovery to play the tape to the party to whom discovery is being given, and for that party to make his own recording as it is played.’

Judges:

Walton J

Citations:

[1975] Ch 185, [1974] 2 All ER 465

Jurisdiction:

England and Wales

Cited by:

Cited – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 16 May 2022; Ref: scu.180095

Regina v Gough (Stephen): CACD 8 Nov 2001

Where a defendant absconded and failed to give evidence, it was not right for the judge to direct the jury that his failure to give evidence because of his absconding allowed the drawing of adverse inferences. Before such an inference could be drawn, the defendant had to have the consequences of his failure to give evidence explained to him, and that would not have been done in the case of an absconder. That warning was mandatory.

Judges:

Lord Justice Kennedy, Mr Justice Poole and Mr Justice David Steel

Citations:

Times 19-Nov-2001

Statutes:

Criminal Justice and Public Order Act 1994 35(2)

Jurisdiction:

England and Wales

Evidence, Criminal Practice

Updated: 16 May 2022; Ref: scu.166837

Daubert v Merrell Dow Pharmaceuticals Inc: 28 Jun 1993

United States Supreme Court – The court considered the Federal Rules of Evidence in the use of expert or skilled evidence: ‘If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.’

Citations:

(1993) 509 US 579, 43 F3d 13, 113 SCt 2786, 125 L Ed 2, 61 USLW 4805, (1993) 27 Idaho 2797, 125 L Ed 2d 469, 27 USPQ2d 1200

Jurisdiction:

United States

Cited by:

Cited – Kennedy 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: 16 May 2022; Ref: scu.606455

Gibson v Pollock: 1848

The court admitted evidence of practice in dog coursing to determine whether the owner or nominator of a dog was entitled to a prize on its success.

Citations:

(1848) 11 D 343

Jurisdiction:

Scotland

Cited by:

Cited – Kennedy 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: 16 May 2022; Ref: scu.606454

Moore v R Fox and Sons: CA 1956

The plaintiff, a workman in the course of his employment, was injured by an unexplained explosion.
Held: The doctrine of res ipsa loquitur applied, no explanation for the explosion having been offered. ‘Res ipsa loquitur’ is a rule of evidence based upon common sense.
Lord Evershed MR said: ‘It will be necessary, therefore, for me to consider in some detail the evidence produced before the judge. But I will anticipate at once my conclusions. If, as the judge thought, this was a case of res ipsa loquitur,that is, a case in which this accident having regard to all the circumstances in which it occurred, spoke for itself and led to the inference of negligence, then, with all respect to him, I do not agree with his conclusion that the defendants thereafter discharged that onus by calling four expert witnesses, the result of whose evidence was, after all, that the accident was inexplicable.’ and ‘It must, as I venture to think, always be a question whether upon proof of the happening of the particular event, it can with truth be said that the thing speaks for itself. The event or thing offending, may, or may not, produce that result. Not every accident has, without more, that effect. If, on a closer analysis of the happening and in circumstances, it does not in truth appear fairly to follow that the proper inference is one of negligence, then the case is not one of res ipsa loquitur at all’.

Judges:

Lord Evershed MR

Citations:

[1956] 1 QB 596

Cited by:

Cited – Devine v Colvilles Ltd HL 11-Mar-1969
The House considered the position of the doctrine of res ipsa loquitir. The plaintiff had been injured falling or jumping from a raised platform.
Held: The claim succeeded. ‘ I hold it proved that there was a general panic. Now the defenders . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Evidence

Updated: 16 May 2022; Ref: scu.554759

Regina v H (Evidence: Corroboration): HL 25 May 1995

The fact that there may have been a possibility of collusion is not sufficient to stop the admission of similar fact evidence by way of corroboration. ‘ . . the function of the trial judge is not to decide as an intellectual process whether the evidence satisfies prescribed conditions, but to strike as a matter of individual judgment, in the light of his experience and common sense, a balance between the probative value of the similar fact evidence and its potentially damaging effect.’ It is eventually for the jury to decide on the possibility of collusion in similar fact evidence in sex abuse cases.

Judges:

Lord Mustill

Citations:

Gazette 21-Jun-1995, Independent 26-May-1995, Times 25-May-1995, [1995] 1 AC 596, [1995] 2 WLR 737, [1995] CLY 938

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v H (Evidence: Corroboration); Regina v Hepburn CACD 2-Mar-1994
The defendant appealed his conviction for indecent assault on his daughter and stepdaughter. The prosecution relied upon the allegatins as similar fact evidence. The complainants denied collaboration and concoction.
Held: The jury should . .

Cited by:

Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Lists of cited by and citing cases may be incomplete.

Evidence, Crime

Updated: 15 May 2022; Ref: scu.86783

Regina v Aziz; Regina v Tosun; Regina v Yorganci: HL 16 Jun 1995

The defendant (one of three) relied upon his part exculpatory statement made in interview and did not give evidence. The judge said that his good character was relevant as to his own propensity, and the character of the others was relevant to their credibility. The appeals were upheld, and the crown in turn appealed.
Held: Both exculpatory and inculpatory parts of a defence statement were to be left to the jury as truth of their content. A judge could comment if a defendant failed to allow his account to be tested by cross examination, but had a discretion not to do so if common sense required otherwise. Here the convictions had been correctly quashed. A defendant is entitled to a good character direction on first conviction though the Judge may make amendments to the standard directions for propensity and credibility though other admissions. The good character of an accused is relevant not only to credibility but also to the likelihood that he would commit the offence in question.
The purpose of a good character direction was considered by Lord Steyn: ‘it has long been recognised that the good character of a defendant is logically relevant to his credibility and to the likelihood that he would commit the offence in question. That seems obvious. The question might nevertheless be posed: why should a judge be obliged to give directions on good character? The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals. Hence there has been a shift from discretion to rules of practice and Vye was the culmination of this development . .’
Lord Steyn asked ‘What is good character?’ He recognised that a defendant may have no previous convictions but it may emerge during the course of the trial, for example through cross-examination on behalf of a co-defendant, that the defendant has in fact been dishonest for many years. How should the judge deal with such a case? Lord Steyn continued: ‘A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in according with the Vye in a case where the defendant’s claim to good character is spurious. I would further hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye . . That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie directions must be given and the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye . . and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them’

Judges:

Lord Steyn

Citations:

Gazette 19-Jul-1995, Independent 16-Jun-1995, Times 16-Jun-1995, [1996] AC 41, [1995] 3 All ER 149, [1995] 2 Cr App R 478

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Durbin CACD 1995
The appellant had been convicted of the importation of 875 kilos of cannabis. He had spent convictions but more significantly he admitted in interview being engaged in smuggling other contraband goods. Furthermore, he admitted telling lies to the . .

Cited by:

Cited – Regina 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 . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Ian Cauldero and Nigill Francois v The State PC 28-Sep-1999
PC (Trinidad and Tobago) The defendants appealed their convictions for murder. They complained at to the judge’s direction as to a statement and as to intent, where they had said that the gun had been wrestled . .
Applied – Thompson v The Queen PC 16-Feb-1998
(Saint Vincent and the Grenadines) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit . .
Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Cited – Mantoor Ramdhanie and others v The State PC 15-Dec-2005
PC (Trinidad and Tobago) The defendant appealed his conviction, saying he had not been properly able to pur forward his evidence of good character. The judge had prevented the defence putting questions to show a . .
Cited – Payton, Regina v CACD 26-May-2006
The defendant appealed a conviction of possession of 66 grams of cannabis with intent to supply. Also found were a large number of small bags and pounds 7,000 in cash. The defendant said the cannabis was for his personal use, and the equipment had . .
Cited – Onasanya v London Borough of Newham Admn 14-Jul-2006
The defendant had tried to sell his car by placing a notice in a rear window saying it was for sale, and leaving it on the street.
Held: The authority said that there was more than one purpose in the vehicle being left on the street, and that . .
Cited – Lord-Castle v Director of Public Prosecutions QBD 23-Jan-2009
The defendant appealed by case stated from his conviction for using a motor vehicle fitted with a siren. When stopped various items suggesting that driver might be providing an ambulance service were found. The siren was not used.
Held: The . .
Cited – Krishna v The State PC 6-Jul-2011
krishna_statePC11
(Trinidad and Tobago) The applicant appealed against his conviction for murder, complaining as to the way a former co-accused had been allowed to give evidence and the admission of a confession, saying that he had been beaten by police officers.
Cited – Shirley, Regina v CACD 8-Nov-2013
The defendant had been convicted of several very serious sexual and physical assaults and rapes. He appealed against his conviction, saying that the judge had not fairly represented his defence to the jury. He said that the complainant had been . .
Cited – Regina v Gray CACD 30-Apr-2004
The court examined the authorities as to good chracter directions where a defendant had previous convictions. Rix LJ said: ‘In our judgment the authorities discussed above entitled us to state the following principles as applicable in this context: . .
Cited – GAI v Regina CACD 5-Oct-2012
The defendant’s appeal based on the absence of a good character direction had succeeded. The court now gave its reasons.
Held: After reviewing the authorities, the appeal succeeded: ‘the learned judge was wrong to find that the fact that . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 15 May 2022; Ref: scu.86077

Regina v Bonython: 1984

(South Australia Supreme Court) The court considered the basis for deciding whether a proposed witness was an expert.
Held: It is for the judge to determine whether a witness is competent to give evidence as an expert and for that purpose there are two questions for the judge to decide: ‘The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This . . may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
An investigation of the methods used by the witness in arriving at his opinion may be pertinent, in certain circumstances, to the answers to both the above questions . . Where the witness possesses the relevant formal qualifications to express an opinion on the subject, an investigation on the voir dire of his methods will rarely be permissible on the issue of his qualifications. There may be greater scope for such examination where the alleged qualifications depended upon experience or informal studies… Generally speaking, once the qualifications are established, the methodology will be relevant to the weight of the evidence and not to the competence of the witness to express an opinion…’

Citations:

[1984] 38 SASR 45

Jurisdiction:

Australia

Cited by:

Approved – Doughty v Ely Magistrates’ Court and Another Admn 7-Mar-2008
The claimant sought judicial review. He practised giving evidence as to the operation of traffic speed cameras. The defendant magistrates had declined to accept his evidence saying that he was not an expert.
Held: ‘Whether someone is competent . .
Cited – Kennedy 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.

Criminal Practice, Evidence

Updated: 15 May 2022; Ref: scu.267002

Tay Bok Choon v Tahanson Sdn Bhd: PC 1987

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.

Judges:

Lord Templeman

Citations:

[1987] 1 WLR 413, [1987] BCLC 472

Cited by:

Cited – Re Haden Bill Electrical Ltd 1995
The petitioner had had in practice control of the company as chairman and though he owned only 25% of the shares. His own company loaned andpound;200,000 to the company as working capital. He complained that he had been removed as a director.
Mentioned – In the Matter of Pectel Limited; O’Neill; O’Neill v Phillips; Phillips and Pectel Limited CA 1-May-1997
The petitioners sought either the purchase of their shares, or the winding up of the company alleging unfair prejudice in the management of the company. The defendants argued that what was complained of did not fall within section 459 since it was . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth, Evidence, Litigation Practice

Updated: 15 May 2022; Ref: scu.264074

English Exporters (London) Ltd v Eldonwall Ltd: ChD 1973

The Court was asked as to the extent to which a valuer can permissibly rely upon matters drawn from his own knowledge and experience, and which are not proven by direct evidence on the one hand, as compared to specific transactions upon which he relies for the formation of an opinion as to value, on the other hand, and which must be proven.
Held: Where an expert relies upon the existence of some fact in support of an opinion, that fact must be proved by admissible evidence. Megarry J said: ‘I know of no special rule giving expert valuation witnesses the right to give hearsay evidence of facts.’
As to ‘non-specific hearsay’ he said: ‘As an expert witness, the valuer is entitled to express his opinion about matters within his field of competence. In building up his opinions about values, he will no doubt have learnt much from transactions in which he has himself been engaged, and of which he could give first-hand evidence. But he will also have learned much from many other sources, including much of which he could give no first-hand evidence. Text books, journals, reports of options and other dealings, and information obtained from his professional brethren and others, some related to particular transactions and some more general and indefinite, will all have contributed their share. Doubtless much, or most, of this will be accurate, though some will not; and even what is accurate so far as it goes may be incomplete, in that nothing may have been said of some special element which affects values. Nevertheless, the opinion that the expert expresses is none the worse because it is in part derived from the matters of which he could give no direct evidence. Even if some of the extraneous information which he acquires in this way is inaccurate or incomplete, the errors and omissions will often tend to cancel each other out; and the valuer, after all, is an expert in this field, so that the less reliable the knowledge that he has about the details of some reported transaction, the more his experience will tell him that he should be ready to make some discount from the weight that he gives it in contributing to his overall sense of values. Some aberrant transactions may stand so far out of line that he will give them little or no weight. No question of giving hearsay evidence arises in such cases; the witness states his opinion from his general experience.’

Judges:

Megarry J

Citations:

[1973] 1 Ch 415, [1973] 1 All ER 726, [1973] 2 WLR 435

Statutes:

Landlord and Tenant Act 1954 24A

Jurisdiction:

England and Wales

Landlord and Tenant, Evidence, Litigation Practice

Updated: 14 May 2022; Ref: scu.656664

Jones v South Eastern and Chatham Railway: 1918

There is a ‘general rule of evidence that statements may be used against a witness as admissions but that you are not entitled to give evidence of statements on other occasions by the witness in confirmation of the testimony.’

Citations:

[1918] 87 LJKB 775

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Beedles CACD 31-Jul-1996
The defendant appealed against his conviction for sexual assault. The issue was whether a note written by the complainant to her teacher was admissible as evidence of recent complaint to corroborate her statement. Similar allegations had been made . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 13 May 2022; Ref: scu.225383

Re ET (Serious Injuries: Standard of Proof): FD 2003

The court heard a care application in which the baby had sustained skull, brain and other injuries alleged to be at the hands of her parents.
Held: The standard of proof was the civil standard of the balance of probabilities and directed himself according to the principles in re H. ‘Although the result is much the same, this [the cogency requirement] does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.
So it may very well be that, in looking at these more recent dicta, one is (as Miss Ball put it) somewhat ‘dancing on the head of a pin’; and no counsel has gone so far as to submit to me that, in a serious case such as this, it is now the criminal standard which should in terms be directly applied.
I therefore propose, in applying the civil standard and the re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 . . cogency test here, to have well in mind the dicta in the latter two cases just cited. So, whenever in this judgment I ‘find’ something occurred, or expressed myself ‘satisfied’ or ‘persuaded’ of some fact or other, it is in the light of the authorities which I have just been discussing and on the basis that, in this very serious case, the difference between the civil and the criminal standards of proof is ‘largely illusory’.’

Judges:

Bodey J

Citations:

[2003] 2 FLR 1205

Citing:

Applied – In 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 . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .

Cited by:

Doubted – In re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening) CA 14-May-2004
In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Children

Updated: 13 May 2022; Ref: scu.196918

Irving v Minister of Pensions: SCS 1945

Appeals were against decisions of Pensions Appeal Tribunals relating to claims for pensions in respect of death or disablement by war injuries. Article 4(1) of the Royal Warrant concerning Retired Pay, Pensions, etc dated December 1943 (Cmd 6489) provided that in no case was there to be an onus on any claimant to prove that the disablement or death of a member of the military forces was attributable to or aggravated by war service and that the benefit of any reasonable doubt should be given to the claimant: ‘In every issue of disputed facts between two parties, the onus of proof must inevitably be either on the one hand or the other, and the result of the provisions I have quoted is that the onus of proof is on the Minister.’

Judges:

Lord Justice Clerk Cooper

Citations:

1945 SC 31

Cited by:

Cited – Kerr v Department for Social Development (Northern Ireland) HL 6-May-2004
Wrongful Refusal of Benefits
The claimant was estranged from his family, but claimed re-imbursement of the expenses for his brother’s funeral. The respondent required him to establish that none of his siblings was in a better position than he to pay for the funeral, but he had . .
Lists of cited by and citing cases may be incomplete.

Scotland, Evidence, Benefits

Updated: 13 May 2022; Ref: scu.196892

Arbroath v North Eastern Railway: 1883

In a case alleging malicious prosecution, the burden of proving absence of reasonable and probable cause is on the Plaintiff, who thus takes on the notoriously difficult task of proving a negative

Citations:

(1883) II QBD 440

Jurisdiction:

England and Wales

Cited by:

Cited – Sinclair v Chief Constable of West Yorkshire and British Telecommunications Plc CA 12-Dec-2000
The claimant had been prosecuted, but the charge was dismissed as an abuse of process. He now appealed a strike out of his civil claim for damages for malicious prosecution.
Held: The appeal failed. The decision to dismiss the criminal charge . .
Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other

Updated: 13 May 2022; Ref: scu.196690

The Palermo: 1883

A copy of an original document which is not itself privileged is privileged only if (a) the copy came into existence for the purpose of litigation, and (b) the original document is not and has not at any time been in the control of the party claiming privilege.

Citations:

(1883) 9 PD 6

Jurisdiction:

England and Wales

Cited by:

Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 13 May 2022; Ref: scu.196686

Reynolds 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: ‘The man has to be treated as if he had never been convicted at all . . If he is asked whether he has been convicted he need not answer. He can say ‘No’.’

Judges:

Lord Denning MR

Citations:

[1978] 2 LIR 22

Statutes:

Rehabilitation of Offenders Act 1974

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 13 May 2022; Ref: scu.195576

Regina v Koerns: CACD 2000

Citations:

[2000] Crim LR 473

Jurisdiction:

England and Wales

Cited by:

Cited – Pinfold, 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: 13 May 2022; Ref: scu.190484

Regina v Lattimore: CACD 1975

‘. . . It is also inconceivable that the court would receive inadmissible evidence; for the court must act according to law.’

Judges:

Scarman LJ

Citations:

[1975] 62 Cr App R 53

Jurisdiction:

England and Wales

Cited by:

Cited – Pinfold, 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 . .
Cited – Levey, Regina v CACD 27-Jul-2006
The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 13 May 2022; Ref: scu.190485

Regina 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 properly be admitted if it is to the effect that a defendant is suffering from a condition not properly described as mental illness, but from a personality disorder so severe as properly to be categorised as mental disorder.’

Citations:

[1993] 96 Crim App R 1

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

Cited – Pinfold, 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 . .
Cited – Regina 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice

Updated: 13 May 2022; Ref: scu.190488

Blatch v Archer: 1774

Lord Mansfield said: ‘It is certainly a maxim that all evidence is to be weighed according to proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’

Judges:

Lord Mansfield

Citations:

[1774] 1 Cowp 63

Jurisdiction:

England and Wales

Cited by:

Cited – Six Continents Retail Ltd v Carford Catering Ltd, R Bristoll Ltd CA 5-Nov-2003
The claimant’s premises had been destroyed by fire. They sought damages from the designers for negligence. . .
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 12 May 2022; Ref: scu.190085

Regina 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.

Citations:

[1976] 62 Cr App R 33

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Cited – Regina 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.

Evidence

Updated: 12 May 2022; Ref: scu.189887

O’Donnell v Reichard: 1975

Citations:

[1975] VR 916

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 12 May 2022; Ref: scu.188869

The “Filiatra Legacy”: 1991

The plaintiff had put in evidence under the Civil Evidence Act a statement by a surveyor that he had checked certain cargo tanks to ensure they were empty. At a late stage in the trial the plaintiff sought to say that he had not done so in direct contradiction to the evidence which they had called.
Held: After considering how far the common law prohibited a party from asserting that evidence given in chief by a witness he has called is untruthful and the provisions of the Act, ‘In these circumstances we do not find in the case law or the legislation anything which requires us to hold that the judge had no power to treat the evidence of Captain Bellucci as otherwise than true; and not being so required, we are not ourselves willing to go so far. ‘

Judges:

Mustill LJ

Citations:

[1991] 2 Lloyds Reports 337

Evidence

Updated: 12 May 2022; Ref: scu.187676

Regina v Skegness Magistrates’ Court ex parte Cardy: 1985

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.

Judges:

Robert Goff LJ

Citations:

[1985] RTR 49

Statutes:

Magistrates Courts Act 1980 97(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Grant 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 . .
Approved – Director of Public Prosecutions v Andrew Earle Anthony Brown, Jose Teixeira QBD 16-Nov-2001
Where a defendant to a charge of driving with excess alcohol, sought to test the accuracy of the Intoximeter, the Magistrates should consider whether the evidence was as to the particular Intoximeter used, and was of sufficient quality to displace . .
Cited – Director 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 . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Cunliffe, Regina (on the Application of) v West London Magistrates’ Court Admn 6-Jul-2006
The claimant was an employee of the company manufacturing alcohol measuring devices. He sought judicial review of decisions by magistrates to require him to attend court to give evidence which would require him to breach obligations of confidence he . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Evidence, Magistrates

Updated: 12 May 2022; Ref: scu.187056

Regina v Knight and Thayre: 1905

Statements were rejected, because they had been obtained from the accused before arrest by means of a long interrogation by a person in authority over him. The court adverted thus to the case of questions put by a constable after arresting:- ‘when he has taken anyone into custody . . he ought not to question the prisoner . . I am not aware of any distinct rule of evidence that, if such improper questions are asked, the answers to them are inadmissible, but there is clear authority for saying that the judge at the trial may in his discretion refuse to allow the answers to be given in evidence.’

Judges:

Channell, J

Citations:

(1905) 20 Cox 711

Cited by:

Cited – Ibrahim 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: 12 May 2022; Ref: scu.184199

Regina v Histed: 1898

The court excluded the answers of a prisoner in custody, on the authority of R. v. Gavin, saying that the constable was entrapping the prisoner and trying by a trick to set a broken-down case on its legs again.

Judges:

Hawkins, J.

Citations:

(1898) 19 Cox 16

Citing:

Applied – Regina v Gavin 1888
The court excluded a statement made to a constable, who questioned his prisoner in a way that amounted to cross-examination. A constable has no right to ask questions without expressly saying that the answers cannot be relevant evidence. . .

Cited by:

Cited – Ibrahim 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: 12 May 2022; Ref: scu.184196

Regina v Booth and Jones: 1910

Channell J said: ‘the moment you have decided to charge him and practically got him into custody, then, inasmuch as a judge even cannot ask a question or a magistrate, it is ridiculous to suppose that a policeman can. But there is no actual authority yet that if a policeman does ask a question it is inadmissible; what happens is that the judge says it is not advisable to press the matter.’ (approved on appeal)

Judges:

Channell J

Citations:

(1910) 5 Criminal Appeal Reports 179

Jurisdiction:

England and Wales

Cited by:

Cited – Ibrahim 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, Police

Updated: 12 May 2022; Ref: scu.184200

Davie v Magistrates of Edinburgh: 1953

Issues arose in relation to the expert evidence which had been led.
Held: The court rejected a submission that, where no counter evidence on the science in question had been adduced for the pursuer, the Court was bound to accept the conclusions of an expert witness for the defenders, saying that this view was ‘contrary to the principles in accordance with which expert opinion evidence is admitted’. These principles were that: ‘Expert witnesses however skilled or eminent can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court . . Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the Judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’ In relation to the use made by the Lord Ordinary of passages in a publication referred to by an expert witness for the defenders, some of which inter alia not been put to the witness: ‘I do not think that he was entitled to do so. Passages from a published work may be adopted by a witness and made part of his evidence or they may be put to the witness in cross-examination for his comment. But, except in so far as this is done, the Court cannot in my view rely upon such works for the purpose of displacing or criticising the witness’s testimony.’

Judges:

Lord President Cooper

Citations:

1953 SLT 54, 1953 SC 34

Jurisdiction:

Scotland

Cited by:

Cited – Sharman Weir (Inquiry Into the Death of Sharman Weir) ScSf 23-Jan-2003
The deceased died after complications in her pregnancy.
Held: The cause of death was (1)(a) intracerebral haemorrhage, (1)(b) severe hypertension, (2)(a) hepatic necrosis, (2)(b) HELLP syndrome (haematological diagnosis), and (3) . .
Cited – Dingley v Chief Constable of Strathclyde Police HL 11-May-2000
The officer had been injured in an accident in a police van. He developed multiple sclerosis only a short time afterwards. The respondent denied that the accident caused the MS.
Held: There is no proof of what causes MS, but it was common . .
Cited – Dingley v The Chief Constable, Strathclyde Police 1998
The court was asked whether the development of multiple sclerosis had been caused by physical injury sustained in a motor accident. Medical science was not able to demonstrate the connection between the two, and reliance was placed on . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Kennedy 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: 12 May 2022; Ref: scu.183341

Dora 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.

Citations:

15 March 1999 (unreported)

Jurisdiction:

England and Wales

Cited by:

Distinguished – 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, . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 12 May 2022; Ref: scu.182477

WH 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 continuing. Those are questions for the trial or an application for summary judgment. Either the claimant’s case for summary judgment is strong enough or it is not, and it should not be bolstered up by denying to the defendant the benefit of the doubt in relation to a ‘without prejudice’ communication.

Judges:

Robert Walker LJ

Citations:

(Unreported 20 March 2000)

Jurisdiction:

England and Wales

Cited by:

Cited – 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, . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 12 May 2022; Ref: scu.182476

Regina v Hewitson, Bramich, Vincent: CACD 24 Sep 1998

The defendants appealed their conviction after admission of evidence taken from secret tape recordings taken from a recording device hidden in the garage of one of the defendants.
Held: The evidence had been properly admitted. It was not possible to say that the convictions were unsafe.

Citations:

[1998] EWCA Crim 2653

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Chalkley, Jeffries CACD 19-Dec-1997
The 1995 Act will not permit the Court of Appeal to allow an appeal where a conviction was safe but there was a substantial procedural unfairness. In order to understand the role of pre-1 January 1996 jurisprudence in applying what is now the . .
Cited – Regina v Graham CACD 1997
Under the 1995 Act the sole test to be applied by the court is whether the conviction is unsafe. If the court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is . .
Cited – Regina v Greene CACD 8-Apr-1997
The crucial event was the change of plea to guilty. If a defendant submits that admitted facts do not in law amount to the offence charged and the trial judge rules otherwise, then it is not difficult to see how an appeal against conviction can lie . .

Cited by:

Appeal from – Hewitson v The United Kingdom ECHR 27-May-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings
The applicant had been . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence

Updated: 11 May 2022; Ref: scu.155527

Vernon v Bosley (1): CA 8 Apr 1994

Though the judge had a right to exclude admissible evidence, it remained a balancing exercise which came down to being a matter of his discretion. Evidence might not be admitted which would involve ‘inconvenience, expense, delay or oppression’. The court approved the dictum of Sedley J at first instance, saying: ‘I think I would prefer ‘relevance’ to ‘literal admissibility’ but the general tenor of this passage expresses the principle which I have tried to explain in my own words, namely that in some cases a ruling on admissibility may involve weighing a degree of relevance against ‘other things’.’

Judges:

Hoffmann LJ

Citations:

Times 08-Apr-1994, [1994] PIQR 337

Jurisdiction:

England and Wales

Cited by:

See Also – Vernon v Bosley QBD 5-Aug-1994
The Judge may impose a schedule for the examination of witnesses if there is a severe overrun of the case at the hearing. . .
Cited – Wilkinson v West Coast Capital and others ChD 22-Jul-2005
A claim was to be made about actions of unfair prejudice by the directors against the minor shareholder. The court considered a preliminary issue as to the admissibility of evidence, including without prejudice correspondence.
Held: The . .
See Also – Vernon v Bosley (2) CA 29-Mar-1996
The defendant had been driving the plaintiff’s daughters, but negligently caused an accident from which they died. The plaintiff was called to the accident, and claimed to have suffered post traumatic stress. The defendant said that the effect was . .
See Also – Vernon v Bosley (3) CA 19-Dec-1996
The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used . .
Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice

Updated: 11 May 2022; Ref: scu.90156

Woods v Duncan: 1946

Viscount Simonds said: ‘Before the liability of a defendant to pay damages for the tort of negligence can be established in an action brought by or on behalf of an injured man, three things have to be proved – (1) that the defendant failed to exercise due care; (2) that the defendant owed to the injured man a duty to exercise due care; and (3) that the defendant’s failure was the ’cause’ of the injury in the proper sense of the term.’
. . And as to the position where an individual was the defendant and the plaintiff sought to rely on the doctrine of res ipsa loquitur: ‘I will assume against him, though I doubt whether the assumption is justified that this is a case in which the principle of res ipsa loquitur may be applied. But to apply this principle is to do no more than shift the burden of proof. A prima facie case is assumed to be made out which throws upon him the task of proving that he was not negligent. This does not mean that he must prove how and why the accident happened: it is sufficient if he satisfies the court that he personally was not negligent. It may well be that the court will be more easily satisfied of this fact if a plausible explanation which attributes the accident to some other cause is put forward on his behalf; but this is only a factor in the consideration of the probabilities.’

Judges:

Viscount Simonds

Citations:

[1946] AC 401, [1946] 1 All ER 420

Cited by:

Cited – Devine v Colvilles Ltd HL 11-Mar-1969
The House considered the position of the doctrine of res ipsa loquitir. The plaintiff had been injured falling or jumping from a raised platform.
Held: The claim succeeded. ‘ I hold it proved that there was a general panic. Now the defenders . .
Lists of cited by and citing cases may be incomplete.

Negligence, Evidence

Updated: 11 May 2022; Ref: scu.554760

McCauley v Vine: 1999

Sir Patrick Russell considered the effect of section 11 of the 1968 Act, saying: ‘The closing words of that section ‘unless the contrary is proved’ provides in my judgment, the clearest possible mandate to a defendant in a road traffic accident case to attack his earlier conviction provided he has some good force for so doing and can discharge the burden of proof to a civil standard that the section imposes upon him.’

Judges:

Sir Patrick Russell

Citations:

[1999] 1 WLR 1977

Statutes:

Civil Evidence Act 1968 11(2)

Jurisdiction:

England and Wales

Cited by:

Applied – RAR v GGC QBD 10-Aug-2012
The claimant alleged that the defendant, her stepfather, had sexually and otherwise assaulted her when she was a child. He had pleaded guilty to one charge in 1978, and now said that the claim was out of time. The claimant sought the extension of . .
Cited – RAR v GGC QBD 10-Aug-2012
The claimant alleged that the defendant, her stepfather, had sexually and otherwise assaulted her when she was a child. He had pleaded guilty to one charge in 1978, and now said that the claim was out of time. The claimant sought the extension of . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 11 May 2022; Ref: scu.463643

Secretary 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.

Citations:

[2003] EWCA Civ 10

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 10 May 2022; Ref: scu.236551

John Pierce v Her Majesty’s Advocate: 1981

A forensic scientist had been called as an expert witness at a criminal trial. He had made an unjustified assumption but had not disclosed the making of the assumption to the court.
Held: The court concluded that the witness had been discredited, not only as a scientist, but also as a witness upon the accuracy, fairness and objectivity and of whose evidence reliance could be placed: ‘This was in our judgment, conduct on the part of an expert witness which demonstrated a complete misunderstanding of the role of scientific witnesses in the Courts, and a lack of the essential qualities of accuracy and scientific objectivity which are normally to be taken for granted.’

Judges:

Lord Justice-General (Lord Emslie)

Citations:

1981 SCLR 783

Jurisdiction:

Scotland

Cited by:

Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 09 May 2022; Ref: scu.226226

Chadwick v Bowman: CA 1886

The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against inspection were made to cover such a case as this. It does not appear to me that these documents really came into existence for the purposes of the rule upon which the defendant’s counsel relied.’

Judges:

Mathew J, Denman J

Citations:

(1886) 16 QBD 561

Jurisdiction:

England and Wales

Cited by:

Explained – Watson v Cammell Laird and Co Ltd CA 1959
Referring to the case of Chadwick v. Bowman: ‘…. the essential fact was that certain letters which the defendant had received, and copies of letters which he had written, had been at some stage destroyed by the defendant, and in order to replace . .
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Cited – Dubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 09 May 2022; Ref: scu.196688

Watson v Cammell Laird and Co Ltd: CA 1959

Referring to the case of Chadwick v. Bowman: ‘…. the essential fact was that certain letters which the defendant had received, and copies of letters which he had written, had been at some stage destroyed by the defendant, and in order to replace them the defendant obtained from the third party, from and to whom they had been written, copies, which therefore would be available as secondary evidence of the original documents which he himself had lost or destroyed. The court said, accordingly, that these copies, the mere replacements of something which he would have had to produce himself, must be produced.’

Judges:

Chadwick v. Bowman

Citations:

[1959] 1 WLR 702

Jurisdiction:

England and Wales

Citing:

Explained – Chadwick v Bowman CA 1886
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against . .

Cited by:

Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 09 May 2022; Ref: scu.196687

Regina v Secretary of State for the Home Department ex parte Momin Ali: CA 1984

The court discussed the applicability of Ladd -v Marshall principles as to the admission of new evidence in public law proceedings. Sir John Donaldson MR said: ‘the decision in Ladd v Marshall [1954] 1 WLR 1489 has as such no place in that context,’ but ‘the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the Court to depart from them if the wider interests of justice so require.’
and ‘This fresh evidence was clearly available and should have been placed before Webster J. It is not the function of this court, as an appellate court, to retry an originating application on different and better evidence. We are concerned to decide whether the trial judge’s decision was right on the materials available to him, unless the new evidence could not have been made available to him by the exercise of reasonable diligence or there is some other exceptional circumstance which justifies its admission and consideration by this court. That is not this case.’

Judges:

Sir John Donaldson MR

Citations:

[1984] 1 WLR 663, [1984] Imm AR 23, [1984] 1 All ER 1009

Jurisdiction:

England and Wales

Citing:

Cited – Ladd 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 . .

Cited by:

Cited – Regina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 09 May 2022; Ref: scu.193434

Great Atlantic Insurance v Home Insurance: CA 1981

The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the plaintiffs had waived privilege in relation to the whole document.
Templeman LJ said: ‘In Minter v Priest . . the House of Lords affirmed that a communication between solicitor and his client is privileged provided the relationship of solicitor and client is established and that the communication is such that the communication is ‘such as, within a very wide and generous ambit of interpretation, must be fairly referable to the relationship . . In the present case the relationship of solicitor and client between the American attorneys and the plaintiffs is undoubted. The plaintiffs were seeking and the American attorneys were proffering advice in connection with a business transaction. The fact that litigation was not then contemplated is irrelevant. This appeal may serve a useful purpose if it reminds the profession that all communications between solicitor and client where the solicitor is acting as a solicitor are privileged subject to exceptions to prevent fraud and crime and to protect the client and that the privilege should only be waived with great caution.’
and ‘In my judgment, however, the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading.’ and ‘In interlocutory proceedings and before trial it is possible to allow a party who discloses a document or part of a document by mistake to correct the error in certain circumstances. Where a document has been disclosed as a result of misconduct by the defendants, against the will of the plaintiffs and in any event not by the deliberate act of the plaintiffs, then remedial action both before and during the trial may be possible. But in my judgment the plaintiffs deliberately chose to read part of a document which dealt with one subject matter to the trial judge, and must disclose the whole.’

Judges:

Templeman LJ

Citations:

[1981] 2 All ER 485, [1981] 2 Lloyds Rep 138, [1981] 1 WLR 529

Jurisdiction:

England and Wales

Citing:

Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Appeal from – Great Atlantic Insurance Co v Home Insurance Co 1981
Lloyd J said: ‘if the principal has held out his agent as having a certain authority, it hardly lies in his mouth to blame the agent for acting in breach of a secret limitation placed on that authority’. . .
Approved – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .

Cited by:

Cited – Three 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 . .
Cited – Three 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 . .
Cited – Mayne Pharma Pty Ltd Another v Debiopharm Sa and Another PatC 10-Feb-2006
Defendant’s application in patent revocation claims . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 09 May 2022; Ref: scu.194267

Regina v Immigration Appeal Tribunal ex parte Haile: CA 2002

The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove the mistake was first produced in the Court of Appeal. The error could and should have been spotted by the claimant’s advisers before the IAT decision, or at least before the judicial review hearing.
Held: It should nonetheless be admitted. Under Ladd v Marshall it would have fallen ‘at the first hurdle’; but ‘these principles never did apply strictly in public law and judicial review.’ The principle in Al-Mehdawi did not necessarily govern asylum cases.

Judges:

Simon Brown LJ

Citations:

[2002] INLR 283

Jurisdiction:

England and Wales

Citing:

Cited – Ladd 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 . .
Cited – Regina v Secretary of State for the Home Department ex parte Momin Ali CA 1984
The court discussed the applicability of Ladd -v Marshall principles as to the admission of new evidence in public law proceedings. Sir John Donaldson MR said: ‘the decision in Ladd v Marshall [1954] 1 WLR 1489 has as such no place in that context,’ . .
Cited – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .

Cited by:

Cited – E v Secretary of State for the Home Department etc CA 2-Feb-2004
The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted. . .
Cited – Gungor, Regina (on the Application Of) v Secretary of State for the Home Department Admn 7-Sep-2004
The claimant made a further claim for asylum after his first claim had failed and his appeal rejected. He claimed that as a Kurd, he would face arrest if returned to Turkey. His passport had had a false visa stamp attached.
Held: While the . .
Cited – FP (Iran) v Secretary of State for the Home Department CA 23-Jan-2007
The claimants said that rules which allowed an appeal tribunal to proceed in their absence when they were absent through no fault of their own, were unlawful in depriving them of a fair trial. The claimants had each moved house but their former . .
Lists of cited by and citing cases may be incomplete.

Immigration, Evidence

Updated: 09 May 2022; Ref: scu.193429

Chapman v Copeland: 1966

Citations:

(1966) 110 SJ 569

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 09 May 2022; Ref: scu.188868

In re O and Another (Children: Care proceedings evidence): FD 14 Aug 2003

The mother had refused to give evidence at the hearing in care proceedings, to answer allegations made against her. She appealed a decision against her.
Held: In cases involving the care of children, there is no place for the ‘no comment’ interview which was part and parcel of criminal procedure. Though parents might understandably feel that there was an adversarial feel, the objective was protection of children not punishment. Accordingly the court must almost inevitably draw inferences against a parent who refused to submit herself to cross examination.

Judges:

Johnson J

Citations:

Times 26-Sep-2003, Gazette 16-Oct-2003

Jurisdiction:

England and Wales

Evidence, Children

Updated: 09 May 2022; Ref: scu.186455

Scott Paper Co v Drayton Paper Works Ltd: 1927

Parties to litigation should ‘be encouraged fully and frankly to put their cards on the table.’

Judges:

Clauson J

Citations:

[1927] 44 RPC 151

Cited by:

Cited – Cutts 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 . .
Cited – Prudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice

Updated: 09 May 2022; Ref: scu.186459

W Lamb Limited (Trading As The Premier Pump and Tank Company) v J Jarvis and Sons Plc: TCC 31 Jul 1998

Contractors built a petrol station, and sub-contractors the underground piping. Leaks developed, and it was agreed to complete repairs, and apportion financial repairs through the court proceedings. In a case where a judge found it difficult to apportion blame, he could return to rely upon the question of onus. The parties had not alleged contributory negligence, and no apportionment could be made under the Act. There had been no sufficient agreement as to apportionment to prevent the judge reading it as necessary to give it business sense. Where there was multiple causation of damage, it was appropriate to distribute responsibility accordingly.
Court Service The Plaintiff, as sub-contractor to the Defendant, installed the pipework for a petrol filling station. The Defendant was responsible for the concrete supporting and surrounding the pipework. The pipework developed leaks and had to be replaced. The parties had agreed that the replacement works be carried out, reserving their positions as to the expense, for which each sought to make the other liable. The current trial was of liability only. In substance the only issue was whether the pipes failed because of faulty workmanship by the Plaintiff or because of the acts or omissions of the Defendant.
Held: (i) the failure was caused equally by the defaults of the Plaintiff and the Defendant; (ii) there was no rule of law which prevented effect from being given to that finding; (iii) the Defendant should pay one third of the Plaintiff’s costs of the trial.

Judges:

Judge Hicks QC

Citations:

[1998] EWHC Technology 304

Links:

Bailii

Statutes:

Civil Liability (Contributions) Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Morris v London Iron and Steel Co Ltd CA 1987
In exceptional cases, a judge conscientiously seeking to decide the issues between the parties might have to conclude ‘I just do not know’. . .
Cited – Tennant Radiant Heat Ltd v Warrington Development Corporation 1988
A property comprised a large building let on fully repairing leases of 22 units. The many rain outlets were allowed to become blocked, and water accumulated above one unit before that part of the roof collapsed. The landlord appealed a finding that . .
Lists of cited by and citing cases may be incomplete.

Construction, Evidence, Damages

Updated: 09 May 2022; Ref: scu.135885

Regina v Gavin: 1888

The court excluded a statement made to a constable, who questioned his prisoner in a way that amounted to cross-examination. A constable has no right to ask questions without expressly saying that the answers cannot be relevant evidence.

Judges:

AL Smith, J

Citations:

(1888) (15 Cox 656)

Cited by:

Not followed – Regina v Brackenbury 1893
. .
Cited – Ibrahim 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 . .
Applied – Regina v Histed 1898
The court excluded the answers of a prisoner in custody, on the authority of R. v. Gavin, saying that the constable was entrapping the prisoner and trying by a trick to set a broken-down case on its legs again. . .
Doubted – Regina v Best CCA 1909
Referring to the admissibility of answers to questions put before an arrest, ‘it is quite impossible to say that the fact that a question of this kind has been asked invalidates the trial’. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 08 May 2022; Ref: scu.184191

Regina v Reason: 1872

Citations:

(1872) 12 Cox 228

Cited by:

Cited – Ibrahim 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: 08 May 2022; Ref: scu.184187

Merrill 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, any defence denying that would be dishonest and supporting it would involve perjury. It was the heart of the litigation. In Unilever the court referred to the exclusion of the evidence as a cloak for perjury. That situation would arise here. The admissions were admissible on that basis. It was a very clear case.

Judges:

Judge Raymond Jack Q.C

Citations:

[2001] 1 LPR 31

Cited by:

Distinguished – 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, . .
Cited – Savings 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 . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 08 May 2022; Ref: scu.182478

Regina v Marrin: CACD 4 Feb 2002

In order to assist in making the volunteers on the ID parade more greatly resemble the defendant, the police had used make-up to look as if they had stubble. The defendant appealed his conviction following the admission of that evidence.
Held: The police were correct to take reasonable steps to make the volunteers resemble the defendant. They were bound by the Code of Practice, but the code was silent on the point. Such a procedure, adopted in good faith and not objected to, led to no unfairness. It would, however, be sensible to keep a record of those to whom such make-up was applied.

Judges:

Lord Justice Keene, Mr Justice Gage and Judge Stevens, QC

Citations:

Times 05-Mar-2002

Statutes:

Police and Criminal Evidence Act 1984 66

Evidence, Criminal Practice

Updated: 08 May 2022; Ref: scu.167714

Bourns Inc v Raychem Corporation, Clifford Chance, Row and Maw, Latham and Watkins: PatC 17 Oct 1998

Where a party sought disclosure of documents in support an application in a costs taxation, the payee could choose not to disclose, but if he did so the payer was bound by implied undertakings to use them only for the purposes of that application and no other.

Citations:

Times 26-Nov-1998, [1999] FSR 641, [1999] 3 All ER 154

Cited by:

Cited – Instance and Others v Denny Bros Printing Ltd and Others ChD 3-Feb-2000
The dispute arose between parties to without prejudice communications or who had obtained documents from such persons and were commercially connected with them.
Held: An implied agreement would bind them as parties or by reason of the source . .
Appeal from – Bourns Inc v Raychem Corporation CA 17-Dec-1998
. .
Lists of cited by and citing cases may be incomplete.

Costs, Intellectual Property, Evidence

Updated: 08 May 2022; Ref: scu.135877

In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research: ChD 1964

Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’

Judges:

Ungoed-Thomas J

Citations:

[1964] 1 WLR 451, [1964] 1 All ER 771

Jurisdiction:

England and Wales

Cited by:

Cited – In 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 . .
Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts, Evidence

Updated: 08 May 2022; Ref: scu.519362

Kemble v Farren: CCP 13 Jun 1829

Where it appeared on the record, that an agreement sued on was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, evidence of the declarations of one of such other proprietors was held admissible on the part of the defendant.

Citations:

[1829] EngR 519, (1829) 3 Car and P 623, (1829) 172 ER 574 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Kemble v Farren 6-Jul-1829
Liquidated Damages Clause to Specify Which Loss
The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 07 May 2022; Ref: scu.322387

Regina v Derby Magistrates Court Ex Parte B: QBD 31 Oct 1994

A solicitor was correctly required by the court to produce his client attendance notes from the conduct of the defence for a client previously acquitted of murder for use in a trial of a later Defendant.

Citations:

Times 31-Oct-1994

Jurisdiction:

England and Wales

Cited by:

Appeal froom – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence, Criminal Practice

Updated: 07 May 2022; Ref: scu.86534

Gallagher v BRS: 1974

Evidence was required to support an assertion of collateral contract.

Citations:

[1974] 2 QB 440

Cited by:

Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Lists of cited by and citing cases may be incomplete.

Evidence, Contract

Updated: 06 May 2022; Ref: scu.198909

Regina v Tate: CACD 1977

At the close of a prosecution case for driving with excess alcohol, the appellant stated that he would not give or call evidence. He then submitted that the jury should be directed to consider only the admissible evidence of the analyst called who stated in cross examination, that two of the experiments had been carried out by a colleague. The results of those experiments were, therefore, hearsay and inadmissible. The trial judge then permitted the second analyst to be called, and the appeal was dismissed.
Held: ‘Since 1911 there have been a number of cases before this court and its predecessor in which the problem has had to be considered. It suffices, we think, to say without going through the cases in detail, that it is now clearly established that the trial judge has a discretion whether he will allow the prosecution to call any more evidence after they have closed their case. The exercise of discretion will not be interfered with by this court unless it has been exercised either wrongly in principle or perversely.’

Judges:

Lawton LJ

Citations:

[1977] RTR 17

Jurisdiction:

England and Wales

Cited by:

Cited – Christopher James Jolly v Director of Public Prosections Admn 31-Mar-2000
At trial in the magistrates court, the prosecution had failed to bring evidence that the computer used to analyse the defendant’s breath alcohol was in proper working condition. The defendant submitted no case to answer, and the magistrates allowed . .
Cited – MacDonald v Skelt QBD 1985
At the close of the prosecution case, it was submitted that the defendant had no case to answer because there was insufficient evidence that the blood specimen taken from him and that analysed by the Scientific Officer were the same. The Justices . .
Cited – Tuck v Vehicle Inspectorate Admn 24-Mar-2004
The defendant appealed a conviction for exceeding the gross permitted weight on a goods vehicle. The magistrates having heard the case, the defendant submitted there was no case to answer, the prosecution having failed to bring evidence as to the . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Evidence, Criminal Practice

Updated: 06 May 2022; Ref: scu.195670

Moore v Ransome’s Dock Committee: 1898

Citations:

(1898) 14 TLR 539

Jurisdiction:

England and Wales

Cited by:

Cited – Mood Music Publishing Co v De Wolfe Ltd CA 1976
The plaintiffs alleged breach of copyright case involving music and sought to have admitted in evidence similar fact evidence showing that the defendants had published music resembling material protected by copyright in the past. The defendant . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 06 May 2022; Ref: scu.186044