Application was made for a summons for a witness to attend and produce documents and a tape recording for the trial. The request had been rejected as an attempt to rely on similar fact evidence, and had been brought only late in the hearing.
Held: Applying O’Brien, and respecting that this was a matter of case management where an appeal court should only intervene with great reluctance, the judge’s decision had been wrong. The defendant had given evidence to say that he did not carry a grudge. The recording was required, and the summons should be issued: ‘the prejudice to Mr Desmond of the admission of a short, taped telephone conversation with him, in circumstances in which the judge will no doubt permit him, (if on reflection he wishes) to return to the witness box and deal with the matter, is small, whereas the risk that, without access to the tape, the jury might reach a false conclusion about the existence of a grudge and the genesis of the article relating to Pentagon is substantial.’
Rix LJ, Wilson LJ
 EWCA Civ 667, Times 04-Aug-2009,  EMLR 5
England and Wales
Cited – O’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Cited – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .
See Also – Desmond v Bower CA 20-Jul-2009
interlocutory appeal . .
Lists of cited by and citing cases may be incomplete.
Defamation, Litigation Practice, Evidence
Updated: 02 November 2021; Ref: scu.361448