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Evidence - From: 2003 To: 2003

This page lists 35 cases, and was prepared on 21 May 2019.

 
Phillips v Symes [2003] EWCA Civ 1769
2003
CA

Evidence
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of court.
1 Cites

1 Citers

[ Bailii ]
 
Re ET (Serious Injuries: Standard of Proof) [2003] 2 FLR 1205
2003
FD
Bodey J
Evidence, Children
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'."
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Secretary of State for Health v C [2003] EWCA Civ 10
2003
CA

Evidence
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.
1 Citers


 
The Coca-Cola Company and Another v Cengiz Aytacli and others Times, 11 February 2003; [2003] EWHC 91 (Ch); Times, 20 March 2003
30 Jan 2003
ChD
The Honourable Mr Justice Peter Smith
Contempt of Court, Evidence
The claimant having succeeded in an action against the defendants, now sought an order for their committal for contempt, accusing them of having given false evidence, and of having failed to comply with court orders made. The defendant asserted a right not to incriminate himself, and gave no evidence. He now claimed to have been acting under duress. Held: Duress required to be shown immediate threats of violence, which remained operative, to which a reasonable person would have taken heed, and an inability to escape the threat. The defendant had failed to establish duress. These proceedings were civil and it was not for the claimant to establish the absence of duress. Evidence of duress in civil contempt proceedings goes merely as a mitigation, and is not a defence. This is not incompatible with the defendants' human rights. The defendant had not purged his contempt even now, and a sentence of immediate imprisonment of four months was appropriate.
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 Regina v Venn; CACD 1-Feb-2003 - [2003] EWCA Crim 178
 
Jones v University of Warwick Times, 07 February 2003; [2003] EWCA Civ 151; Gazette, 20 March 2003; [2003] 1 WLR 954
4 Feb 2003
CA
Woolf LCJ, Hale, Latham LJJ
Litigation Practice, Evidence, Civil Procedure Rules, Human Rights
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully. Held: The situation asked judges to reconcile the irreconcilable. Courts should be reluctant to create rules which would deny the admission of genuine evidence. Where a party behaved in a reprehensible manner, the court should look to other methods of marking the unlawful behaviour, including costs awards, but the court was required to get to the truth. A party’s behaviour in the conduct of litigation, although very blameworthy, may not result in the claim or defence being struck out, or even in evidence being excluded. Any infringement under article 8.1 was justified under article 8.2.
Civil Procedure Rules 32.1(2) - European Convention on Human Rights 8.1 8.2
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[ Bailii ]
 
Regina v Matthews; Regina v Alleyne Times, 18 February 2003
7 Feb 2003
CACD
Rix, Crane, Maddison JJ
Evidence
The defendants appealed their convictions for murder, complaining that the judge had failed properly to direct the jury as to the required likelhood of death which might result from the act complained of, and turned a rule of evidence into a rule of law. They had thrown a youth from a bridge into a river, and the judge had said that his death was virtually certain to follow Held: The judge had gone further in his direction than he should, redrafting the direction. It should have been on the basis that the jury could not find the necessary intent 'unless …' Though it was wrong to elevate a rule of evidence into one of law, in this no injustice was caused.
1 Cites


 
Sunley and Another v Gowland White (Surveyors and Estate Agents) Ltd [2003] EWCA Civ 240
10 Feb 2003
CA

Professional Negligence, Evidence

[ Bailii ]

 
 Regina (Sim) v Secretary of State for the Home Department; Admn 11-Feb-2003 - Times, 21 February 2003; Gazette, 03 April 2003; [2003] EWHC 152 (Admin); [2003] 2 WLR 1374; [2004] QB 1288
 
ISTIL Group Inc, Metalsukraine Corporation Limited v Zahoor, Reventox Consulting Limited [2003] EWHC 165 (Ch); [2003] 2 All ER 252
14 Feb 2003
ChD
Mr Justice Lawrence Collins
Evidence
Lawrence Collins J reviewed the authorities, and held that, where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and "should ordinarily intervene, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy." On the facts, an injunction should be refused "on the ground of the public interest in the disclosure of wrongdoing and the proper administration of justice".
1 Cites

1 Citers

[ Bailii ]

 
 Calden (Administrator of the Estate of Amanda Calden) v Dr Nunn and Partners; CA 19-Feb-2003 - [2003] EWCA Civ 200
 
Regina v M (Witness Statement) Times, 02 May 2003
20 Feb 2003
CACD
Potter LJ, Mackay, Mellor JJ
Evidence, Human Rights
The defendant appealed his conviction for murder. The principal witness' statement had been allowed to be read to the jury after the witness had claimed to be afraid of giving evidence. Held: There was no general principle which would operate against admitting evidence in this way. Luca did not establish a rule to which there would be no exceptions. Such a result would make the sections unusable and only encourage criminals to frighten witnesses. In this case the judge's discretion was not supportable because of the defendant's own disability, and the witness had potential flaws.
Criminal Justice Act 1988 823(3) - European Convention on Human Rights 6.3(d)
1 Cites


 
Regina v Randall (EP) [2003] EWCA Crim 436
21 Feb 2003
CACD
Mr Justice Mccombe Lord Justice Kennedy Mr Justice Treacy
Crime, Evidence
The defendant had been a co-accused on a charge of murder. He appealed saying the judge had incorrectly directed the jury on the relevance of his co-accused's previous convictions for violence. Held: The appeal was allowed. He should have been allowed in his own defence to bring in evidence of the co-accused's previous violent record as evidence of that defendant's propensity to violence.
1 Cites

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[ Bailii ]
 
Regina (Mapah) v Secretary of State for the Home Department Times, 05 March 2003; Gazette, 01 May 2003; [2003] EWHC 306 (Admin)
25 Feb 2003
QBD
Pitchford J
Evidence, Immigration
The claimant challenged rules preventing him recording his interview when applying for asylum. Held: The rule preventing such recordings was not improper. To allow such private recordings might give rise to much satellite litigation, and the applicant was given full opportunity to make and keep notes of the interviews.
1 Citers

[ Bailii ]
 
Zarvos v Pradhan and another Times, 04 April 2003; [2003] EWCA Civ 208; Gazette, 09 May 2003; [2003] 13 EG 114; [2003] 2 P and CR 122
7 Mar 2003
CA
Ward, Clarke, Longmore LJJ
Landlord and Tenant, Evidence
The landlord had occupied the premises as a restaurant, but subsequently let it to the respondents. The landlord opposed renewal of the tenancy saying that it intended to recommence trading, and now appealed a finding in favour of the tenant. Held: The landlord had failed to show a sufficiently strong case that his plans had financial viability. Evidence acquired later that a bank would loan the requisite amount was not admissible, since it might have been obtained in time for the trial. It was not necessary always for the court to consider the two limbs under 30(1)(f) sequentially.
Landlord and Tenant Act 1954 30(1)(g)
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[ Bailii ]
 
The Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321; Times, 31 March 2003; Gazette, 09 May 2003; [2004] Ch 1; [2003] 3 WLR 841; [2003] 1 BCLC 696; [2003] BCC 682; [2003] CP Rep 46; [2004] 4 All ER 325
11 Mar 2003
CA
Lady Justice Hale, Lord Justice Potter, Sir Andrew Morritt VC
Company, Evidence
The Secretary of State attempted, in the course of director's disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The defendant wished to challenge the finding. Held: Following Hollington v Hewthorn, a collateral attack on a finding of an earlier tribunal might be, but need not necessarily be, an abuse of process. If the earlier findings were in a criminal court, they would bind a later court in defamation proceedings, but would only be prima facie in others. An earlier finding in a civil court would bind a later civil court. If the parties in the later case were not parties to the first, it would be an abuse only if the later proceedings would be manifestly unfair, or relitigation would bring the court into disrepute. There was no reason why an earlier finding of a civil court with a lower burden of proof should bind a later court required to use a higher burden.
Sir Andrew Morritt V-C said: "If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute".
Company Director Disqualification Act 1986
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[ Bailii ]
 
Martin v McGuiness [2003] ScotCS 96
2 Apr 2003
OHCS
Lord Bonomy
Scotland, Evidence, Personal Injury, Human Rights
The pursuyer sought to have excluded evidence obtained unlawfully. He sought damages forr personal injuries. The defender had employed an enquiry agent who had taken films of him which he claimed infringed his rights to private and family life. Held: Behaviour such as that of the defender could infringe the pursuer's human rights, but the evidence could be admitted if there was a legitimate aim for obtaining and presenting the evidence. Any infringement had to remain proportionate. The presenter of a false case, himself would attempt to infringe the defenders right to a fair trial. A balance had to be struck. In this case the enquiries were reasonable and proportionate, and the results could be admitted.
European Convention on Human Rights 8
1 Cites

[ Bailii ]
 
In re Y and K (Minors) (Split hearing: Evidence) Times, 18 April 2003
7 Apr 2003
CA
Hale, Thorpe LJJ
Children, Evidence
In a 'split trial' procedure under the Act, it was wrong to bring in rules from criminal procedures. A witness who was competent was also compellable. Dicta in In re B were made without reference to section 98.
Children Act 1989 31 98
1 Cites


 
Rowe and others v Fryers and Another [2003] EWCA Civ 655
8 May 2003
CA

Prisons, Evidence, Torts - Other

[ Bailii ]
 
Berry Trade Ltd and Another v Moussavi and others [2003] EWCA Civ 715; Times, 03 June 2003; Gazette, 17 July 2003
22 May 2003
CA
Lord Justice Peter Gibson, Lord Justice Tuckey and Mr. Justice Nelson
Legal Professions, Evidence
A defendant appealed against an order admitting as evidence, records of 'without prejudice' conversations. Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, may generally not be admitted in evidence. An exception to the rule is where there is shown 'unambiguous impropriety.' The judge had asked himself whether there was a serious and substantial risk of perjury. That would weaken the real test, and was incorrect. The evidence here should not have been admitted.
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[ Bailii ]
 
Regina v Jones; Regina v Jenkins Times, 19 June 2003
5 Jun 2003
CACD
Auld LJ, Silber, Owen JJ
Crime, Evidence
Where each of more than one defendants asserted that he was not responsible for the crime, the jury should be directed (in addition) that they should consider the case of each defendant separately, the case should be considered as a whole, including looking at he evidence of co-accused, and when considering the evidence of a co-defendant they should allow for any self-serving element, and evidence of co-accused should be considered as for anyone else. The direction was defective, the appeals were allowed, and a retrial ordered.
1 Cites


 
Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901
11 Jun 2003
CA
Waller LJ, Thorpe LJ
Legal Professions, Evidence
Waller LJ said: "To answer the question whether waiver of parts of a privileged communication waives the complete information, it is that dictum of Mustill J., as he then was, which applies. A party is not entitled to cherry pick and a party to whom privileged information is provided is entitled to have the full content of what is being supplied in order to see that cherry picking is not taking place. If this material . . had been evidence given at a trial, there really would no answer to the point that the full information should be provided in order to make certain that cherry picking is not taking place."
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[ Bailii ]
 
Beck v Ministry of Defence [2003] EWCA Civ 1043; Gazette, 14 August 2003; Times, 22 July 2003
11 Jun 2003
CA
Lord Philips of Worth Matravers, Simon Brown, Ward LJJ
Evidence
The claimant in a personal injury action was examined for a medical report on behalf of the defendants. The defendants, being unhappy with the report sought a second examination, and were granted leave. The claimant now appealed that leave. Held: Leave should only have been granted on condition that the defendant first disclose the medical report already obtained. This was necessary to avoid 'expert-shopping' and to avoid suspicions.
1 Citers

[ Bailii ]
 
Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102; Times, 28 August 2003; Gazette, 02 October 2003
23 Jul 2003
CA
Waller, Mantell, Laws LJJ
Evidence, Personal Injury, Civil Procedure Rules
The claimant appealed an order requiring him to disclose to the defendants the terms of the instructions given to the expert witness. Held: Rule 35.10(4) restriction applied to prevent the defendant from obtaining an order for the inspection he sought.
Civil Procedure Rules 31.14(2) 35.10(4)
1 Cites

[ Bailii ]
 
O'Brien v Chief Constable of the South Wales Police [2003] EWCA Civ 1085; Times, 22 August 2003; Gazette, 02 October 2003
23 Jul 2003
CA
Lord Justice Brooke Lord Justice May Lord Justice Mantell
Evidence, Civil Procedure Rules
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 proceedings were made. In general, the greater the putative force of the evidence the less ready a court should be to exclude it, but the court might do so where it might disproportionately affect the length of the trial, and particularly so in jury trials. The judge had properly directed himself in accordance with the CPR, and referred expressly to the discretion he was given and had exercised that discretion. Appeal dismissed.
There is a two stage test for the admission of similar fact evidence: "It follows that in civil proceedings, as opposed to criminal proceedings, the first question to be asked is whether the similar fact evidence is admissible. To be admissible it must be logically probative of an issue in the case, and the first part of the House of Lords' test in P must be applied to exclude evidence which is not sufficiently similar to the evidence in the case before the court. At this stage the inquiry must be fact-sensitive . . Once it is decided that the evidence is admissible, the court must then ask itself whether it ought, in its discretion, to refuse to allow it to be admitted (and if it is of that view it should remove the contention from the party's statement of case, or refuse to allow an amendment to include it, on the basis that an allegation which a party cannot prove ought not to form a part of its case). In deciding how to exercise its discretion, the matters listed in CPR 1(2) must loom large in the court's deliberations. In principle, the stronger the probative force of the similar fact evidence, the more willing the court should be not to exclude it, everything else being equal. On the other hand, the court should have a tendency to refuse to allow similar fact evidence to be called if it would tend to lengthen the proceedings and add to their cost or complexity unless there are strong countervailing arguments the other way . . "
Civil Procedure Rules 32.1(2)
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[ Bailii ]
 
Regina v Knight Times, 20 August 2003; Gazette, 02 October 2003; [2003] EWCA Crim 1977
29 Jul 2003
CACD
Laws, LJ, Mitting, Rivlin QC, JJ
Criminal Practice, Evidence
The defendant had given no answers during his police interview, but instead his solicitor read out a full written statement of his case. At trial, he did not depart from the statement thus provided. He appealed after the judge allowed the jury to make adverse inferences from his silence, on the basis that it had prevented the police testing his statement on interview. Held: The section was directed to ensuring the early disclosure of a suspect's case, not to provide for it to be tested. An inference should not have been permitted.
Criminal Justice and Public Order Act 1994 34(1)(a)
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In re O and Another (Children: Care proceedings evidence) Times, 26 September 2003; Gazette, 16 October 2003
14 Aug 2003
FD
Johnson J
Evidence, Children
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.

 
Regina (Crown Prosecution Service) v Brentford Youth Court Times, 09 October 2003
2 Oct 2003
QBD

Evidence
The prosecutor appealed a ruling that the video evidence of a handicapped child should be given in its full form. Held: The child's evidence could not properly be understood without the references to irrelevant matters. The whole tape should therefore be played. Otherwise it would not be proper to include irrelevant matters just because the evidence was given by video.

 
Post Office Counters Ltd v Mahida Times, 31 October 2003; [2003] EWCA Civ 1583
22 Oct 2003
CA
Hale LJ, Kay LJ
Evidence
The defendant appealed a judgment. She was an employee of the claimant, and contractually due to make good certain sorts of losses. When the claim was made, she asked for the original documentation, but it was eventually admitted that it had been destroyed whilst in the claimant's possession. The trial had proceeded on the basis of secondary evidence. Held: The secondary evidence was prima facie admissible, and such evidence should not normally be excluded without strong reason. However here the defendant had requested the documentation early, and the claimant had not taken proper care of the documentation. This went to the weight to be attached to the evidence, and that relating to the substantial amounts should have been excluded.
[ Bailii ]
 
Regina (Crown Prosecution Service, Greater Manchester) v Bolton Justices Times, 07 November 2003; [2003] EWHC 2697 (Admin); [2004] 1 WLR 835
31 Oct 2003
QBD
Kennedy LJ, Royce J
Evidence, Magistrates, Human Rights, Criminal Practice
The magistrates had been taking a deposition, and ordered police officers to be excluded from court. Held: The witness sought not to have to answer questions on the ground that he would be incriminated by his answers. Magistrates should not accept a claim for privilege without investigation. It was insufficient also to accept that this was claimed solely on the grounds of legal advice. The proceedings of taking the deposition were in open court, and the exclusion of those charged with investigating crime was an irregularity.
Crime and Disorder Act 1998 Sch3 P-4
[ Bailii ]
 
Three Rivers District Council v Bank of England (No 5) [2003] EWHC 2565 (Comm)
4 Nov 2003
ComC
Tomlinson J
Legal Professions, Evidence
The defendant bank sought protection from disclosure of advice it had received from its solicitors. Held: To the extent that the communications were for the purpose of seeking advice as to its legal rights and obligations, the communications were protected, but not for communications seeking to obtain advice on the manner of presentation of materials to a private enquiry.
1 Citers


 
Polanski v Conde Nast Publications Limited [2004] 1 WLR 387; [2003] EWCA Civ 1573; Times, 18 November 2003; [2004] 1 All ER 1220
11 Nov 2003
CA
Lord Justice Jonathan Parker Lord Justice Simon Brown Lord Justice Thomas
Defamation, Evidence
The claimant sought damages for defamation. He feared arrest and extradition to the US if he came to England, and was granted an order allowing him to give evidence by video link. The defendant appealed that order. Held: There was no absolute rule which would allow the order made. The judge had considered that if the claimant had only been allowed to give written evidence, this would have had difficulties for both parties. There was no concept of an outlaw in English law to prevent a party bringing an action. "the court should have regard to all the circumstances in deciding whether it is appropriate to make a VCF order specifically to enable a witness to evade the ordinary processes of our (criminal and extradition) law under which he might lose his liberty. I do not accept such that orders should only be refused "in exceptional circumstances". In this case the claimant had chosen this jurisdiction, and sought its assistance. He was a volunteer. He should not be allowed to give evidence by video link.
Civil Evidence Act 1995 1 3 - Civil Procedure Rules 32.1(1)(c) 32.1(2) 33.2(2) 33.4(1) 32.7
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[ Bailii ]

 
 Vehicle and Operator Services Agency v George Jenkins Transport Ltd; Admn 20-Nov-2003 - [2003] EWHC 2879 (Admin); Times, 05 December 2003

 
 Pinfold, Mackenney v Regina; CACD 15-Dec-2003 - [2003] EWCA Crim 3643; Times, 09 January 2004; [2004] 2 Cr App R 5
 
Regina v Randall [2003] UKHL 69; Times, 19 December 2003; [2004] 1 Cr App R 26; [2004] 1 All ER 467; [2004] 1 WLR 56
18 Dec 2003
HL
Lord Bingham of Cornhill, Lord Steyn, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
Crime, Evidence
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 putting his own record in issue the co-defendant had lost the protection of the 1898 Act: "where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries. " Lord Steyn: "It is no answer to admitting [similar fact] evidence that it is evidence of the propensity of the accused to commit certain crimes. On the contrary, that is often the very reason for admitting such evidence. While these rules are not applicable in this case their rationale illustrates that propensity to commit certain crimes may sometimes be relevant to the fact in issue."
Criminal Evidence Act 1898 1(3)
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[ House of Lords ] - [ Bailii ]
 
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