Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2): HL 1988

Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission’. In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. document: had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties.
Held: The documents were supplied with the authority of the ITC.
Lord Bridge of Harwich considered articles 24 and 27.2 of the Vienna Convention, saying: ‘Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.’

Lord Bridge of Harwich
[1988] 1 WLR 16
Vienna Convention on Diplomatic Relations 24 27, International Tin Council (Immunities and Privileges) Order 1972
England and Wales
Citing:
At First InstanceMaclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
CitedBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
CitedBancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Evidence

Updated: 19 November 2021; Ref: scu.510791

Ofulue and Another v Bossert: HL 11 Mar 2009

The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under section 29.
Held: The letter should not be admitted. Any admission in the first letter could not be treated as a continuing acknowledgement, and it could not now be relied upon. The House emphasised the vital importance of the without prejudice system.
Lord Hope said: ‘Where a letter is written ‘without prejudice’ during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so.’ and ‘The essence of it lies in the nature of the protection that is given to parties when they are attempting to negotiate a compromise. It is the ability to speak freely that indicates where the limits of the rule should lie. Far from being mechanistic, the rule is generous in its application. It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement. It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.’
Lord Rodger of Earlsferry said: ‘it is that parties and their representatives who are trying to settle a dispute should be able to negotiate openly, without having to worry that what they say may be used against them subsequently, whether in their current dispute or in some different situation.’
Lord Walker of Gestingthorpe agreed with Lord Rodger and said: ‘As a matter of principle I would not restrict the without prejudice rule unless justice clearly demands it. In England the rule has developed vigorously (more vigorously, probably, than in other common law jurisdictions, and more vigorously than some overseas scholars, notably J H Wigmore approved.)’

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2009] UKHL 16, [2009] 2 WLR 749, [2009] 2 All ER 223, [2009] 11 EG 119, [2009] NPC 40, [2009] 1 WLR 718, [2009] 2 Cr App R 2, [2009] 1 AC 990
Bailii, Times, HL
Limitation Act 1980& 29(2)
England and Wales
Citing:
CitedWhiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .
CitedWaldridge v Kennison 1794
A without prejudice admission that a document was in the handwriting of one of the parties was received in evidence because it was independent of the merits of the case. . .
CitedJones v Foxall CA 27-Mar-1852
Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am . .
Appeal fromOfulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
CitedHoghton v Hoghton CA 16-Apr-1852
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR . .
CitedIn Re Daintrey, Ex Parte Holt QBD 1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedTomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
CitedUnilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
LimitedMuller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
CitedWhiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .

Cited by:
CitedKohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
CitedBerkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice, Evidence

Leading Case

Updated: 11 November 2021; Ref: scu.317966

Wright v Doe Dem Tatham: HL 22 May 1838

In an issue on the sanity of a testator, who made his will in 1825, the devisee offered in evidence the following letters of deceased persons, which were found open, and addressed to testator, with other papers bearing his indorsements, in a cupboard under his book-case in his private room : 1st, a letter dated in 1784, from testator’s cousin, with whom he was proved to be in correspondence in 1787: 2d, a letter dated in 1786, from M., who desired testator to direct his attorney to propose terms of agreement with A. or W. ; this letter was indorsed by testator’s attorney, long since deceased : 3dly, a letter dated 1799, from the curate of testator’s parish.
Held: that they were not admissible in evidence.

[1838] EngR 649, (1838) 4 Bing NC 489, (1838) 132 ER 877
Commonlii
England and Wales
Citing:
See AlsoWright v Doe Dem Sandford Tatham KBD 13-Jun-1837
The court was asked as to the understanding of th edeceased when he made his will. Letters, found in the house, were produced and the court now asked whether they could be used in evidence.
Held: such letters were not admissible unless . .

Cited by:
See AlsoGeorge Wright v Sandford Tatham 7-Jun-1838
On a question of the competence of a party to make a will, letters written to that party by person since deceased, and found (many years after their date) among his papers, are not admissible in evidence without proof that he himself acted upon . .

Lists of cited by and citing cases may be incomplete.

Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.312655

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 of evidence therefore applied, and hearsay evidence was admissible. Nevertheless, the test as to whether it was appropriate to make an order was to the criminal standard. It had been Parliament’s intention to cast these proceedings in a civil mould. The absence of a punitive element in the resulting order, meant that Human Rights law did not make it a criminal procedure. ‘proceedings to obtain an anti-social behaviour order are civil proceedings under domestic law.’ Nevertheless, the heightened civil standard had become almost indistinguishable from the standard in criminal cases, and the case must be proved to the heightened civil standard. Though an anti-social behaviour order may impose restrictions greater than would be a criminal penalty, the essential purpose of an oder is preventative.

Steyn, Hope, Hutton, Hobhouse, Scott LL
Times 21-Oct-2002, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27
House of Lords, Bailii
Crime and Disorder Act 1998 1, European Convention on Human Rights 6
England and Wales
Citing:
CitedSteel and Others v The United Kingdom ECHR 23-Sep-1998
The several applicants had been arrested in different circumstances and each charged with breach of the peace contrary to common law. Under the Magistrates’ Court Act 1980, the court can bind over a Defendant to keep the peace, if the Defendant . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Appeal fromRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
At First InstanceRegina v Manchester Crown Court, ex parte McCann and others QBD 22-Nov-2000
An application for an anti-social behaviour order against an individual was a civil, not a criminal proceeding. The standard of evidence required was on the balance of probability; the civil standard. Such proceedings were not subject to the . .
CitedRegina 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 . .
CitedRegina 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 . .
Appeal fromRegina 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 . .
CitedDombo Beheer BV v The Netherlands ECHR 27-Oct-1993
‘under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-a-vis his . .
CitedRegina v Secretary of State for Trade and Industry Ex Parte McCormick CA 10-Feb-1998
Statements made under compulsion could be used in disqualification proceedings at discretion of the Secretary of State. . .
CitedIn Re Carecraft Construction Co Ltd ChD 13-Oct-1993
A court must hear evidence before disqualifying directors. Though the Director and the Secretary of State might reach an agreement as to what should happen, they could not displace the court in deciding what order should be made, and in making that . .
CitedOfficial Receiver v Stern and Another CA 20-Nov-2001
The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .
CitedGough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were . .
CitedGough and Another v Chief Constable of Derbyshire; Regina (Miller) v Leeds Magistrates’ Court; Lilley v Director of Public Prosecutions QBD 13-Jul-2001
Challenges were made to the powers banning the free movement of those convicted of offences of violence. Orders had been made banning the applicants from attending football matches, and requiring attendance at police stations at times of matches . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedProprietary Articles Trade Association v Attorney-General for Canada PC 1931
The Board was asked how to identify whether an allegation amounted to a criminal one. Lord Atkin said: ‘It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the . .
CitedB 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 . .
CitedCustoms and Excise Commissioners v City of London Magistrates’ Court QBD 2000
Access orders were sought by the Customs and Excise against banks to facilitate an investigation into the affairs of taxpayers and the issue was whether the resulting proceedings constituted ‘criminal proceedings’ within the meaning of section . .
CitedAmand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
CitedHan and Yau t/a Murdishaw Supper Bar, and Others v Commissioners of Customs and Excise CA 3-Jul-2001
The applicant claimed that proceedings under which he had been accused of fraud in dishonestly evading VAT liability were in reality criminal proceedings and that the minimum standards of a fair trial applied.
Held: The characterisation under . .
CitedS v Miller SCS 2001
After an assault S, aged 15, was detained, arrested and charged with assaulting L. The procurator fiscal decided not to prosecute, and the matter was reported to the police and to the reporter and on to a children’s hearing to consider if measures . .
CitedMcGregor v D 1977
With regard to proceedings under the 1968 Act, in no sense were these proceedings criminal proceedings. They were on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff . .
CitedLutz v Germany ECHR 25-Aug-1987
Only criminal charges attract the additional protections under article 6(2) and 6(3). Insofar as these provisions apply to ‘everyone charged with a criminal offence’ it is well established in the jurisprudence of the European Court of Human Rights . .
CitedAlbert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
CitedConstanda v M SCS 1977
The child had been referred to a children’s hearing on the basis that he was exposed to moral danger in terms of section 32(2)(b).
Held: As the whole substratum of the ground of referral was that the child had performed certain acts which . .
CitedAdolf v Austria ECHR 26-Mar-1982
An elderly lady complained that the applicant had assaulted her. The police investigated and reported back to the prosecutor who referred the matter to the Innsbruck District Court. The court registered the case as a ‘punishable act’ under section . .
CitedBenham v United Kingdom ECHR 8-Feb-1995
Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by . .
CitedRavnsborg v Sweden ECHR 23-Mar-1994
Article 6 did not apply to proceedings where the applicant had been fined for making improper statements in written observations before the Swedish courts. The proceedings were regarded as being outside the ambit of article 6 because they were . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedGaryfallou Aebe v Greece ECHR 24-Sep-1997
The fact that only a fine was imposed did not prevent an allegation being one of a criminal offence. . .
CitedBendenoun v France ECHR 24-Feb-1994
The applicant complained of non-disclosure by the prosecution.
Held: His application failed because the undisclosed material had not been relied on by the prosecution and he had given no sufficiently specific reasons for requesting the . .
CitedMcFeeley and others v The United Kingdom ECHR 15-May-1980
(Commission) The claimants had been convicted of terrorist-type offences in Northern Ireland and were serving prisoners in HMP The Maze. They protested at a change of regime imposed in 1976, resulting in them not being permitted association with the . .
CitedRaimondo v Italy ECHR 22-Feb-1994
The applicant was arrested and placed under house arrest on charges relating to his association with the Mafia. As an interim measure some of his property was seized. The proceedings ended in his acquittal. He claimed that the seizure of his . .
IllustrativeSaidi v France ECHR 20-Sep-1993
S had been convicted on the basis of the evidence of drug addicts and in the situation where there was no opportunity to confront the witness.
Held: ‘The court reiterates that the taking of evidence is governed primarily by the rules of . .
CitedGuzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
CitedM v Italy ECHR 1991
The Commission held that article 6(2) did not apply to the confiscation of property belonging to a person suspected of being a member of a mafia-type organisation. . .
IllustrativeKostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
CitedOzturk v Germany ECHR 21-Feb-1984
A minor infringement may be the subject of a criminal charge: ‘If the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 . .
IllustrativeUnterpertinger v Austria ECHR 24-Nov-1986
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not . .
CitedPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .
CitedIn re S (Minors) (Care Order: Implementation of Care Plan) HL 14-Mar-2002
Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed . .
CitedSporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
CitedPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Cited by:
CitedThe Chief Constable of Lancashire v Potter Admn 13-Oct-2003
The claimant appealed refusal of an Anti-Social Behaviour order by the magistrates. The respondent was a street prostitute in Preston. The magistrates had declined to aggregate her behaviour with that of others to find that it caused harrassment . .
CitedIn 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 . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedCommissioner of Police of the Metropolis v Hooper QBD 16-Feb-2005
The police applied to the court for a closure order in respect of premises they said were being used for the sale of Class A drugs. The tenant sought an adjournment, which was granted as were two later applications. On the last hearing, the police . .
CitedMoat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
CitedR, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
DistinguishedRegina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Appealed toRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Appealed toRegina 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 . .
CitedCampbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedChief Constable of Merseyside Police v Harrison Admn 7-Apr-2006
The occupier of property appealed against a closure order. It was said that it had been used for the sale of drugs. The question was whether the civil standard of proof applied, as it was used in anti-social behaviour orders, when an application was . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedO v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
CitedLangley v Preston Crown Court and others CACD 30-Oct-2008
The defendant sought to appeal against a ‘stand-alone’ anti-social behaviour order. The parties disputed whether an appeal lay. The act created an appeal against the making of an order but in this case it was a renewed order.
Held: In the . .
CitedIn re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
CitedPerry v Chief Constable of Humberside Police Admn 18-Oct-2012
The defendant appealed against an anti-social behaviour order. He had been a journalist, and began a private newsletter and campaign alleging amongst other things corruption in the police. He complained that his article 10 rights had been infringed. . .
CitedNewman v Commissioner of the Police of the Metropolis Admn 25-Mar-2009
The defendant appealed against the admission of evidence on the respondent’s application for a football bannng order. A witness statement was based on intelligence reports which meant that the witness could not be effectively examined by he defence. . .
CitedBirmingham City Council v James and Another CA 17-May-2013
The appellant challenged an injunction under the 2009 Act excluding him from parts of Birmingham. He said that it prevented him visiting his mother.
Held: The appeal failed. Moore-Bick LJ said: ‘It was for the judge to decide on the basis of . .

Lists of cited by and citing cases may be incomplete.

Evidence, Crime, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.177450

Amwell View School v Dogherty: EAT 15 Sep 2006

amwell_dogherty

The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, saying also that it had been disclosed too late.
Held: The evidence contained in the recordings was relevant evidence. The question was whether probative evidence could be excluded. To record the private deliberations of the panel was contrary to the public interest. The recordings of the public and private parts of the hearings were to be treated separately. The employers said that the deliberations of the panel were covered by Article 8. They were not protected by respect for family life, and ‘Each of the panel members had put themselves forward to carry out an aspect of the important voluntary work undertaken by many individual members of the public in the governance of schools. To that extent they were putting themselves, and the contributions that they made during the course of that work, into the ‘public’ domain whilst acting in that role. It is difficult to consider them as retaining a right to personal privacy in relation to their participation (by words or conduct) in that socially-important public or quasi-public function. In our judgment, the privacy element of the right to ‘respect for . . private life’ of such a school governor is not engaged at all in the present circumstances. ‘ The claimants had abandoned any suggestion that the recording was a criminal act. Nevertheless, whilst the tribunal were correct to admit the evidence of the public part of the hearing the admission of the recording of the board’s private deliberations was against public policy: ‘there is an important public interest in parties before disciplinary and appeal proceedings complying with the ‘ground rules’ upon which the proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the ‘right’ decision) than the understanding that their deliberations would be conducted in private and remain private. ‘

Luba QC, Lewis, Tatlow
[2006] UKEAT 0243 – 06 – 1509, Times 05-Oct-2006, [2007] ICR 135, [2007] IRLR 198
Bailii
Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 14(2), European Convention on Human Rights 8
Citing:
CitedXXX v YYY CA 2004
Buxton LJ: ‘The first and most important rule of the law of evidence, though one that is not always perceived or observed, is that evidence is only admissible if it indeed is relevant to an issue between the parties.’ . .
CitedBarracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
CitedTaylor-Sabori v The United Kingdom ECHR 22-Oct-2002
The applicant had been convicted of serious criminal offences. There were admitted into evidence intercepts of messages to his pager. He complained that this infringed his right to respect for his private correspondence.
Held: The pager . .
CitedElahi v The United Kingdom ECHR 20-Jun-2006
The claimant complained of the use by the courts of evidence obtained by covert listening devices. In 1996, the chief constable had given authorisations to use a covert listening device in the applicant’s home. It had been in accordance with . .
CitedJones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
CitedMcGowan v Scottish Water EAT 23-Sep-2004
A court or tribunal may properly admit relevant evidence even where it has been gathered in breach of an Article 8 right to ‘privacy’ where to do so is adjudged to be necessary in order to secure a ‘fair’ hearing as required by both the common law . .
CitedTrapp v Mackie HL 1979
Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedHeath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
CitedD v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
CitedBNP 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, . .
CitedRegina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .

Cited by:
CitedQuinn v Ni Trucks Ltd NIIT 27-Oct-2008
. .
CitedCampbell v Port of Larne, Larne Harbour Ltd NIIT 16-Jan-2009
NIIT Age discrimination is now prohibited, in certain employment situations, by the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘the Regulations’).
The provisions of the Regulations which . .
CitedWilliamson v The Chief Constable of The Greater Manchester Police and Another EAT 9-Mar-2010
EAT PRACTICE AND PROCEDURE
Appellate jurisdiction / reasons / Burns-Barke
Case Management
The Employment Judge sitting alone at a pre-hearing review was correct in excluding evidence obtained by . .
CitedVaughan v London Borough of Lewisham and Others EAT 1-Feb-2013
EAT PRACTICE AND PROCEDURE – Admissibility of Evidence
In support of a discrimination claim the Claimant sought permission to adduce in evidence 39 hours’ worth of covert recordings which she had made of . .
CitedPunjab National Bank (International) Ltd and Others v Gosain EAT 7-Jan-2014
EAT PRACTICE AND PROCEDURE – Preliminary issues – Whether court recordings of relevant meetings prior to Claimant’s alleged dismissal were to be admissible in evidence at trial insofar as they involved private . .

Lists of cited by and citing cases may be incomplete.

Employment, Human Rights, Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.245019

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 2(1)(b).
Held: The civil standard of proof is flexible and can vary with the seriousness of the allegation made. The court considered the standard of proof applicable: ‘In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates’ court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates’ court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.’ and ‘There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. Parliament might have decided to wait until, if at all, the offender did offend again and then appropriate charges could be laid on the basis of that further offending. Before 1998 there was effectively no choice but to act in that way. But the obvious disadvantage was that, by the time the offender had offended again, some victim had suffered. The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court’s order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be.’
Lord Bingham of Cornhill: ‘The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court’s order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be.’ and ‘If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the 1998 Act and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed.’

Lord Bingham of Cornhill, CJ
[2001] 1 WLR 340, [2000] Po LR 98, [2000] EWHC 559 (QB), [2001] 1 All ER 562
Bailii
Crime and Disorder Act 1998 2
England and Wales
Citing:
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

Cited by:
CitedGough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were . .
CitedIn 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 . .
CitedRe 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 . .
DistinguishedRegina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
CitedRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
CitedClingham (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 . .
CitedCampbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
CitedW, Regina (on the Application Of) v Director of Public Prosecutions Admn 8-Jun-2005
The defendant appealed a conviction for breaching an anti-social behaviour order. The order had prohibited him from committing any criminal act. It was now challenged as being too wide a prohibition.
Held: ‘The defendant had already been . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedFiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedLangley v Preston Crown Court and others CACD 30-Oct-2008
The defendant sought to appeal against a ‘stand-alone’ anti-social behaviour order. The parties disputed whether an appeal lay. The act created an appeal against the making of an order but in this case it was a renewed order.
Held: In the . .
CitedIn re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.179863

Rhesa Shipping Co SA v Edmonds (The Popi M): HL 16 May 1985

The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was caused by a peril of the sea or alternatively by crew negligence. The suggested peril of the sea was a moving submerged object, i.e. a submarine. The underwriters contended that the vessel was not seaworthy. More specifically, the underwriters advanced a mechanism for unseaworthiness through wear and tear, based on expert metallurgical evidence. The judge rejected that theory. He also rejected the owners’ argument that there had been crew negligence. That left the possibilities that the vessel was in some other way unseaworthy or that it collided with a submarine. There was no clear basis upon for the court to say that burden of proof had been discharged.
Held: The burden of proving this, on a balance of probabilities, lay on the plaintiffs. A trial judge is not bound to accept the evidence of one side or the other: there remains the possibility of deciding the case on the burden of proof. The court should avoid deciding cases on a balance of improbabilities. It was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause, unless all the relevant facts were known; that state of affairs did not exist, as the ship had sunk in deep water. The concept of proof on a balance of probabilities had to be applied with common sense. It required a judge, before he found a particular event occurred, to be satisfied on the evidence that it was more likely to have occurred than not.
(1) where the cause of a past event is in issue and two or more competing causes are advanced the burden of proving his case on causation remains on the claimant throughout, and though the defendant can advance a competing cause there is no obligation on him to prove this case.
(2) Even after a prolonged enquiry with a mass of expert evidence, it is open to the courts to conclude that causation remains in doubt and the result will be that the claimant has failed to discharge the burden of proof.
(3) Therefore the effect of this decision is that where the court considers one theory as improbable but also rules out all other theories the court should not treat the improbable theory as the likely cause of the event.
Lord Brandon of Oakbrook said: ‘the appeal does not raise any question of law, except possibly the question what is meant by proof of a case ‘on a balance of probabilities’. Nor do underwriters challenge . . any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on the balance of probabilities, lost by perils of the sea.
In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the seas is and remains throughout on the shipowners. Although it is open to the underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them.’
As to the Sherlock Holmes fallacy that ‘once you have eliminated the impossible, whatever remains, however improbable, is the truth ‘: ‘In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a Judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasize as being of great importance, namely, that the Judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated.
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a Judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the Judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship’s hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.’

Lord Brandon of Oakbrook
[1985] 2 All ER 712, [1985] 1 WLR 948, [1985] 2 Lloyds Rep 1, [1985] UKHL 15
Bailii
England and Wales
Citing:
At First InstanceThe Popi M; Rhesa Shipping Co SA v Edmonds 1983
The parties disputed the cause of the loss of a ship. The experts suggested different but improbably explanations; each supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. . .
ApprovedLa Compania Martiartu v Royal Exchange Assurance Corporation CA 1923
The court found, on limited evidence, that the ship in respect of which her owners had claimed for a total loss of perils by sea, had in fact been scuttled with the connivance of those owners.
Scrutton LJ said: ‘This view renders it . .

Cited by:
CitedGibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
CitedMoiz Ahmed Siddiqui, Ishrat Siddiqui/Bhajan Singh Sohanpal v Council of the London Borough of Hillingdon TCC 15-Apr-2003
The claimants sought damages for cracks in their house caused by the roots of trees on the defendant’s land.
Held: The claimants had failed to establish by evidence that the tree roots were the cause of the damage. The claim failed. . .
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedExel Logistics Ltd v Curran and others CA 30-Sep-2004
The claimants sought damages for personal injuries after a crash in a Land Rover maintained by the defendants. The defendants appealed findings of negligence in failing properly to inflate the rear tyres, in continuing despite the danger, and poor . .
CitedStephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
CitedFlannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
CitedMcTear 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 . .
CitedCarisbrooke Shipping Cv5 v Bird Port Ltd ComC 13-Sep-2005
. .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedKastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
CitedHill Street Services Company Ltd v National Westminster Bank Plc and Burjor Mistry ChD 19-Oct-2007
The claimant company said that the bank had allowed money to be removed from its account without authority. Originally it said the second defendant, its former director had authrised the payments. On the second defendant denying this, the company . .
ExplainedIde v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
CitedFosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
CitedPiper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
CitedNulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
CitedMilton Keynes Borough Council v Nulty and Others TCC 3-Nov-2011
There had been two fires at depots owned by the claimants. They brought proceedings against an employee, but his insurers repudiated liability saying that they had not been promptly notfied of the claim.
Held: The first fire was caused either . .
CitedLove v Halfords Ltd QBD 8-Apr-2014
The claimant had purchased a new bicycle from the defendants who also maintained it. Several months later, the steerer tube broke causing an accident and severe injury. The cycle had been finally assembled by the defendant after importation, but . .
CitedThe Worshipful Company of Grocers v Keltbray Group Holdings Ltd and Another QBD 19-May-2016
Allegation that a collapse in a nearby building caused a water leak in the claimant’s nearby building.
Held: the effects of the collapse did not cause the major cracking at Grocers’ Hall which was reported on following the flood. The Grocers . .

Lists of cited by and citing cases may be incomplete.

Evidence, Damages, Insurance, Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.184697

Hornal v Neuberger Products Ltd: CA 1956

Proof Standard for Misrepresentation

The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of probabilities. It was for the plaintiff to establish that the defendant had the intent required for the tort asserted. In practice more convincing evidence will be required to establish fraud than any other types of allegation.
Hodson LJ said: ‘Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.’
Morris LJ said: ‘It is, I think, clear from the authorities that a difference of approach in civil cases has been recognized. Many judicial utterances show this. The phrase ‘balance of probabilities’ is often employed as a convenient phrase to express the basis upon which civil issues are decided. It may well be that no clear-cut logical reconciliation can be formulated in regard to the authorities on these topics. But perhaps they illustrate that ‘the life of the law is not logic but experience.’ In some criminal cases liberty may be involved; in some it may not. In some civil cases the issues may involve questions of reputation which can transcend in importance even questions of personal liberty. Good name in man or woman is ‘the immediate jewel of their souls.’
But in truth no real mischief results from an acceptance of the fact that there is some difference of approach in civil actions. Particularly is this so if the words which are used to define that approach are the servants but not the masters of meaning. Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities. This view was denoted by Denning LJ when in his judgment in Bater v. Bater he spoke of a ‘degree of probability which is commensurate with the occasion’ and of ‘a degree of probability which is proportionate to the subject-matter.’
In English law the citizen is regarded as being a free man of good repute. Issues may be raised in a civil action which affect character and reputation, and these will not be forgotten by judges and juries when considering the probabilities in regard to whatever misconduct is alleged. There will be reluctance to rob any man of his good name : there will also be reluctance to make any man pay what is not due or to make any man liable who is not . .’

Morris LJ, Denning LJ, Hodson LJ
[1957] 1 QB 247, [1956] 3 All ER 970
England and Wales
Citing:
CitedBater v Bater CA 1950
The trial judge had said that the petitioner, who alleged cruelty by her husband, must prove her case beyond reasonable doubt.
Held: There had been no misdirection. Each member of the court had found difficulty in distinguishing between the . .

Cited by:
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedBlyth v Blyth HL 1966
The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like . .
CitedKhera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
CitedSix Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedThe Solicitor for the Affairs of HM Treasury v Doveton and Another ChD 13-Nov-2008
The claimant requested the revocation of a grant of probate to the defendant. They had suspicions about the will propounded and lodged a caveat which was warned off and the grant completed. In breach of court orders, the defendant had transferred . .
CitedBritish Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
CitedLindsay v O’Loughnane QBD 18-Mar-2010
lindsay_oloughnaneQBD11
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
CitedHussain v Hussain and Another CA 23-Oct-2012
The claimant appealed against rejection of his claim for damages after a car accident. The defendants argued that the claim was fraudulent. The defendant driver had been involved in other collisions found to be fraudulent. The claimant appealed . .

Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other

Leading Case

Updated: 02 November 2021; Ref: scu.196916

Greenwood v Fitt: 1961

greenwood_fittBC1961

(British Columbia) In the course of without prejudice negotiations, the defendant threatened that he would give perjured evidence and bribe other witnesses to perjure themselves unless the claimants withdrew their claim.
Held: The evidence of that conversation was itself admitted.

[1961] 29 DLR 1
Cited by:
CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .

Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Leading Case

Updated: 01 November 2021; Ref: scu.182474

London Borough of Richmond v B and Others: FD 12 Nov 2010

Caution in Use of Hair Samples to Test Alcohol

The court considered the extent to which reliance could be placed on tests of hair samples for alcohol in care proceedings.
Held: Such evidence should be used with caution: ‘(i) When used, hair tests should be used only as part of the evidential picture. Of course, at the very high levels which can be found (multiples of the agreed cut off levels) such results might form a significant part of the evidential picture. Subject to this however, both Professor Pragst and Mr O’Sullivan agreed that ‘You cannot put everything on the hair test’; in other words that the tests should not be used to reach evidential conclusions by themselves in isolation of other evidence. I sensed considerable unease on the part of Professor Pragst at the prospect of the results of the tests being used, other than merely as one part of the evidence, to justify significant child care decisions;
(ii) Because of the respective strengths and weaknesses of each of the tests (for EtG and FAEEs), if hair tests are going to be undertaken, both tests should be used. Research has shown that the tests can produce conflicting results;
(iii) The results produced by the tests should be used only for the purposes of determining whether they are or are not consistent with excessive alcohol consumption by use of the cut off levels referred to in paragraph 20 above. If they are not – in other words if the concentration found is below the generally recognised cut-off levels – the results are consistent with (indicative of) abstinence/social drinking. If the results are above the generally recognised cut-off levels, they are consistent with (indicative of) excessive alcohol consumption. Further, as referred to earlier in this judgment, at these cut off levels the research evidence suggests that 10% of the results will be false positives. The tests cannot establish whether a person has been abstinent both because the non-detection of either EtG or FAEEs does not mean that the subject has not consumed alcohol and also because the detection of either at volumes below the cut off levels referred to above below does not mean that they have. Finally, on this point, the tests are not designed to establish abstinence or social drinking;
(iv) The current peer agreed cut off levels for both EtG and FAEEs are for the proximal 3 cm segment of hair. Whilst the testing of 1 cm segments (of the proximal 3 cm segment of hair) might have some value for the purpose of looking at trends (and also at very high levels referred to in (i) above), no cut off levels have been established or generally agreed for 1 cm segments nor, as referred to earlier in this judgment, is there sufficient published data on testing such segments to enable the validity of such tests to be established. Accordingly, any evidence based on the testing of 1 cm segments is unlikely to be sufficient to support conclusions as to the level of alcohol consumption;
(v) Notwithstanding what is set out in the Consensus, the witnesses in these proceedings agreed that, when tests demonstrate levels of EtG and FAEEs above the cut off levels referred to in paragraph 20, the results can be said to be ‘consistent’ with excessive consumption over the relevant period. When a test demonstrates a lower level it is ‘consistent’ with abstinence/social drinking.
(vi) As referred to in (iii) above, the current state of research means that there is no peer agreed cut off level for the line between abstinence and social drinking. In the absence of any such peer reviewed and agreed cut off, any court would, in my view, need specific justification before accepting any such evidence.’

Moylan J
[2010] EWHC 2903 (Fam), (2011) 118 BMLR 65, [2011] Fam Law 131, [2011] 1 FCR 401, [2011] 1 FLR 1345
Bailii
England and Wales
Citing:
CitedRe F (Children) (DNA Evidence) FD 20-Dec-2007
The court considered the difficulties which can arise from the use of DNA testing in family proceedings. Experts need to bear in mind that their reports should be expressed in terms which can be understood by lay people and in terms which explain . .
CitedRegina v Weller CACD 4-Mar-2010
The defendant appealed against his convictions for sexual offences, based in part on DNA evidence. He said that the court had not properly applied the rules when considering DNA cases and that there was now additional evidence as to the possibility . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.430393

Blyth v Blyth: HL 1966

The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. So far as the bars to divorce are concerned, like connivance or condonation, the petitioner need only show that on balance of probability he did not connive or condone as the case may be’
Lord Pearson said: ‘The phrase ‘is satisfied’ means, in my view, simply ‘makes up its mind’; the court on the evidence comes to a conclusion which, in conjunction with other conclusions, will lead to the judicial decision.’

Lord Denning
[1966] AC 643
Matrimonial Causes Act 1950 4(2)
England and Wales
Citing:
CitedBater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
CitedHornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .

Cited by:
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

Lists of cited by and citing cases may be incomplete.

Evidence, Family

Leading Case

Updated: 01 November 2021; Ref: scu.237706

Regina v James Hanratty (Deceased): CACD 10 May 2002

Posthumous Appeal – Clear Purpose and Care Needed

An appeal was presented against the conviction for a murder many years earlier. The prosecution sought to introduce DNA evidence to support its case. The appellant party objected.
Held: The purpose of the appeal was to achieve justice, and fresh evidence could be presented by the prosecution, and admitted by the court to achieve that purpose. Though the trial could certainly be criticised by current standards, it had not been at such a level as to make it fundamentally unfair. The court should be careful in expending so much time and money on very old cases.

Mr Justice Leveson
Times 16-May-2002, Gazette 13-Jun-2002, [2002] EWCA Crim 1141, [2002] 2 Cr App R 30, [2002] 3 All ER 534
Bailii
England and Wales
Citing:
CitedRegina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
See AlsoRegina v Hanratty CACD 26-Oct-2000
Persuasive but not conclusive evidence of the deceased’s involvement in a notorious murder for which he had hanged had been found by subsequent DNA analysis. That analysis could only be improved by direct DNA analysis to be obtained by exhuming his . .

Cited by:
CitedBeckles, Regina v CACD 12-Nov-2004
The appellant had been convicted in 1997 of robbery and false imprisonment. His case was now refererred by the Criminal Cases Review Commission. The defendant had, on advice from his solicitor refused to answer questions at the police station. The . .
See AlsoRegina v Hanratty CACD 26-Oct-2000
Persuasive but not conclusive evidence of the deceased’s involvement in a notorious murder for which he had hanged had been found by subsequent DNA analysis. That analysis could only be improved by direct DNA analysis to be obtained by exhuming his . .
CitedKelvin 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 . .
CitedNoye, 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 . .
CitedAdams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.170300

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

The judge was wrong to limit his ability to draw inferences from a putative father’s refusal to take a test to discover paternity.
Times 18-May-1994, [1994] 2 FLR 463
Family Law Reform Act 1969 23(1)
England and Wales
Cited by:
AppliedSecretary of State for Work and Pensions v Jones FD 2-Jul-2003
The appellant Secretary of State challenged a decision of magistrates as to whether the respondent was the father of a child for whom Child Support was sought. The mother had been married, but had been living with the respondent at the appropriate . .
FollowedIn re G (Parentage: Blood Sample) CA 1997
. .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.82282

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

Any party was free to put in evidence statements where the party who had prepared them had himself decided not to call the evidence. There was no power to call the person to give that evidence, but it could be admitted on the basis that it was hearsay evidence. This reversed the old rule. The court still does not have the power to order a party to tender his witness.
Times 03-Aug-2000
Civil Procedure Rules 35.5(5)
England and Wales
Cited by:
CitedThomas-Everard and Others v Society of Lloyd’s ChD 18-Jul-2003
The claimant appealed refusal to set aside a statutory demand made by the respondent society. The proposed defence had been already been dismissed by the courts.
Held: Such a consideration was very relevant, but not necessarily determinative. . .
See AlsoSociety of Lloyd’s v Sir William Otho Jaffray BT ComC 3-Nov-2000
. .
Appeal fromSociety of Lloyd’s v Jaffray and others CA 8-Oct-2001
Applications in group litigation between the Society of Lloyd’s and Names at Lloyd’s – ‘ threshold fraud point’ . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.89376

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

Two company directors sued Swiss bankers who had responded to enquiries from the police in London. The charges which followed had been dismissed, and the directors sued in defamation, seeking to rely upon the materials sent to the police.
Held: The appeal succeeded. There is no implied undertaking as to the use of disclosed documents in criminal proceedings preventing their use in civil proceedings. It was foreseeable that the information, if acted upon, would be made public. This applied whether or not the material was obtained under compulsion. There was no analogy between the position of the Crown in a criminal case and that of a party in civil proceedings. It could not be said that the Crown would be deterred from complying with its obligations of disclosure, whether at common law or now under statute, by concern that the accused might use the documents for some ulterior purpose. The rules of public interest immunity, immunity from suit and qualified privilege should be sufficient protection for people who might be adversely affected by collateral use of disclosed documents.
Otton LJ, Staughton LJ
Times 12-Jun-1997, [1998] QB 424
England and Wales
Citing:
Appeal fromMahon v Rahn QBD 19-Jun-1996
Directors of a London firm of stockbrokers brought libel proceedings against two Swiss bankers.
Held: The absolute immunity which is given to both witnesses and potential witnesses extends to all those taking part in a criminal investigation . .

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

These lists may be incomplete.
Updated: 21 April 2021; Ref: scu.83320

Regina v McAndrew-Bingham: CACD 28 Dec 1998

The offence of attempted child-abduction is an offence of assault or threat of injury, and so the evidence in chief of the child complainant could be given by video recording, and any cross examination be done by live television link.
Gazette 03-Feb-1999, Times 28-Dec-1998
Child Abduction Act 1984 2, Criminal Justice Act 1988 32(2)(a)
England and Wales

Updated: 08 April 2021; Ref: scu.87302

Regina v Murray: CACD 10 Jun 1994

If one defendant claims a defence of duress from fear of the other’s driving, the other driver’s driving convictions are relevant and can be admitted in evidence. Evidence of the convictions of the other driver should have been admitted even though he did not give evidence because they were relevant. Knowledge of his character might well have coloured the jury’s deliberations and bolstered the credibility of Murray’s account. Unless there is simply no nexus whatever between the previous convictions sought to be adduced and the offence alleged against the accused, they should be admitted and admitted in these particular circumstances without any nice distinctions being drawn between the various individual offences recorded in the record.
Ind Summary 11-Jul-1994, Times 24-Jun-1994, [1995] RTR 239
England and Wales
Cited by:
CitedRegina v Randall (EP) CACD 21-Feb-2003
The defendant had been a co-accused on a charge of murder. He appealed saying the judge had incorrectly directed the jury on the relevance of his co-accused’s previous convictions for violence.
Held: The appeal was allowed. He should have been . .
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
CitedRegina v Southwark Coroner ex parte Fields Admn 30-Jan-1998
The deceased died after being hit by a policemen with his baton when being arrested. The verdict of misadventure was now challenged. The police officer said he had hit out in fear of imminent attack. It was said that the Coroner had permitted those . .

These lists may be incomplete.
Updated: 08 April 2021; Ref: scu.87397

Regina v Khan (Sultan): CACD 1 Jun 1994

An unlawful bug of a private conversation on private property, was nevertheless correctly admitted into evidence if it was not unfair to do so within the context of the trial.
Independent 14-Jun-1994, Times 01-Jun-1994, Gazette 13-Jul-1994
Police and Criminal Evidence Act 1984 78
England and Wales
Citing:
Appealed toRegina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .

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

These lists may be incomplete.
Updated: 08 April 2021; Ref: scu.87073

Regina v Quinn: CACD 15 Mar 1994

Police must follow the published Code of Practice, when conducting identity parades, and may not substitute their own. If the evidence is allowed in despite the breach, the judge should explain the significance of the breach to the jury, as it may go to the weight they attach to the evidence.
Ind Summary 04-Apr-1994, Times 15-Mar-1994, [1995] 1 Cr App Rep 480
Police and Criminal Evidence Act 1984 66
England and Wales
Cited by:
CitedRegina v Sewa Singh Gill and Paramjit Singh Gill CACD 31-Jul-2003
The appellants sought to challenge their convictions for cheating the Inland Revenue. They were accused of having hidden assets and income from the revenue. The appellants objected to the use at trial of material obtained in a ‘Hansard’ interview. . .
CitedRegina v Popat CACD 23-Mar-1998
Though an identification parade should be held whenever it would serve a useful purpose, where the evidence of identification by a witness was already complete and satisfactory there was no continuing obligation on the police to provide an . .
CitedGough and Another v The Chief Constable of the West Midlands Police CA 2-Mar-2004
The claimants sought return of vehicle parts from the police. The police replied that the goods had been tampered with in such a way as to suggest they may have been stolen, and that they were therefore kept, even after the finish of the court . .

These lists may be incomplete.
Updated: 26 March 2021; Ref: scu.87582

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

CASE MANAGEMENT – Exclusion of evidence and admission of late evidence – Principles applicable – O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038, HL applied – Need for balancing exercise
[2011] UKFTT 314 (TC)
Bailii
England and Wales
Cited by:
At FTTTxHM Revenue and Customs v Atlantic Electronics Limited UTTC 26-Nov-2012
UTTC APPEAL AGAINST DIRECTION – First-tier Tribunal refusing to admit certain evidence – whether refusal a reasonable exercise of discretion – no -appeals allowed and decisions re-made – principles to be taken . .
At FTTTxHMRC v Atlantic Electronics Ltd UTTC 6-Feb-2012
UTTC COSTS – Transitional appeal – Appeal by HMRC against direction under Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009, Sch 3, para 7 for 1986 applying 2009 Rules to the proceedings – . .

These lists may be incomplete.
Updated: 15 March 2021; Ref: scu.443018

Wilson and Another v Her Majesty’s Advocate (Scottish Criminal Cases Review Commission Referral): HCJ 18 Jun 2009

Lord Wheatley set out the test for admission of skilled evidence: ‘[The subject-matter under discussion must be necessary for the proper resolution of the dispute, and be such that a judge or jury without instruction or advice in the particular area of knowledge or experience would be unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience.’
Lord Wheatley, Lady Paton, Lord Reed
[2009] ScotHC HCJAC – 58, 2009 JC 336, 2009 GWD 24-385, 2009 SCL 1047, 2009 SCCR 666
Bailii
Scotland

Updated: 16 February 2021; Ref: scu.347128

Regina v Director of Public Prosecutions ex parte Kebilene etc: Admn 30 Mar 1999

The applicants sought, by means of the Human Rights Act to challenge the way in which the decision had been made that they should be prosecuted under the 1989 Act, arguing that section 6(2) was inconsistent with the new Act.
Held: The Act contravened the Convention insofar as it made evidential presumptions which were incompatible with the presumption of innocence. An English court is able to apply the Convention anticipating the coming into force of the Act in the UK.
Lord Bingham CJ stated: ‘Statements by ministers concerning the future conduct of themselves and their officials can found no legitimate expectation concerning the future decisions of the Director since he, like the law officers, acts wholly independently of the executive when making decisions on the conduct of criminal proceedings. It is his public duty and responsibility to exercise his own independent judgement. He cannot be bound by any statement made on behalf of the executive, and no reasonable person alert to his constitutional role could expect him to be so bound.’
It was appropriate for the Court to review the soundness of the legal advice on which the DPP acted. The Lord Chief Justice explained: ‘Where the grant of leave to move for judicial review would delay or obstruct the conduct of criminal proceedings which ought, in the public interest, to be resolved with all appropriate expedition, the court will always scrutinise the application with the greatest care, both to satisfy itself that there are sound reasons for making the application and to satisfy itself that there are no discretionary grounds (such as delay or the availability of alternative remedies or vexatious conduct by the applicant) which should lead it to refuse leave. The court will be very slow to intervene where the applicant’s complaint is one that can be met by appropriate orders or directions in the criminal proceedings. If, however, strongly arguable grounds for making application are shown, as the single judge rightly held were shown here, and if there are no discretionary grounds for refusing relief, leave to move may properly be granted; and if on full argument grounds for granting relief are established and no discretionary grounds shown for refusing it, such relief may properly be granted even though the consequence is a delay in the resolution of criminal proceedings. Such was, no doubt, the consequence of quashing the applicant’s committal in Reg. v. Bedwellty Justices, Ex parte Williams [1997] A.C. 225. In the present case I see no discretionary reasons for refusing relief if the applicants establish a ground for granting it’
Lord Bingham of Cornhill LCJ, Laws LJ, Sullivan J
Times 31-Mar-1999, [1999] EWHC Admin 277, [1999] 3 WLR 175
Bailii
Prevention of Terrorism (Temporary Provisions) Act 1989 6(2), European Convention on Human Rights, Human Rights Act 1998
England and Wales
Citing:
CitedRegina v Secretary of State For The Home Department, Ex Parte Launder HL 13-Mar-1997
The question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force . .

Cited by:
Appeal fromRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedRegina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .

These lists may be incomplete.
Updated: 14 February 2021; Ref: scu.139542

Toth v Jarman: CA 19 Jul 2006

The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: The presence of a conflict of interest in an expert need not necessarily disqualify an expert, though ‘where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced.’ The test was as to the independence of his opinion. The court made suggestions for the Rules committee as to possible amendments to the expert’s standard declaration.
Sir Mark Potter President, Arden LJ, Wall LJ
[2006] EWCA Civ 1028, Times 17-Aug-2006, [2006] 4 All ER 1276
Bailii
England and Wales
Citing:
CitedWhitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
CitedNorth Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
CitedLiverpool Roman Catholic Archdeacon Trustees Inc v Goldberg (No 2) 2001
The claimant brought proceedings for professional negligence against a barrister specialising in tax. The Defendant wished to rely upon the expert evidence of another tax barrister in the same set of chambers as him, who was a friend of many years’ . .
CitedPollivitte Ltd v Commercial Union Assurance Company Plc 1987
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . .
CitedField and Another v Leeds City Council CA 8-Dec-1999
The parties were involved in a dispute as to repairs on a tenanted property. The court had ordered an independent surveyor’s report. The claimant objected to the use by the defendant of an employee for this purpose, and was involved in their claims . .
CitedNational Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
CitedAlcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Cited by:
See AlsoToth v Jarman CA 21-Nov-2006
. .
CitedChester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .

These lists may be incomplete.
Updated: 30 January 2021; Ref: scu.243326

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.
Eady J
[2006] EWHC 783 (QB), [2006] EMLR 19
Bailii
Citing:
CitedChase 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:
CitedMcKeown 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. . .

These lists may be incomplete.
Updated: 28 January 2021; Ref: scu.240425

Regina v Xhabri: CACD 7 Dec 2005

The complainant alleged that the defendant had forced her into prostitution under duress. Hearsay evidence had been admitted from members of the complainant’s family as to what she had told them. They were not available to give evidence at the trial.
Held: The defendant had no objected to evidence from the complainant as to the same matters. The admission of evidence from a witness who was unavailable to give evidence and be cross examined was not a breach of the defendant’s right to a fair trial.
Mrs Justice Rafferty, Lord Phillips Lord Chief Justice of England and Wales Mr Justice Mackay
Times 10-Jan-2006, [2005] EWCA Crim 3135
Bailii
Criminal Justice Act 2003 8118, European Convention on Human Rights 6
England and Wales

Updated: 26 January 2021; Ref: scu.235951

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 applicant sought to dissect the negotiations to identify what was admissible. That was not acceptable as regards without prejudice correspondence: ‘part of the purpose is to enable parties to conduct themselves freely in negotiations, it is important that things going beyond technical admissions should be caught by the bars imposed by the without prejudice principles. In my view, that will extend to who it was who broke off negotiations and who decided not to go through with an apparently agreed deal (albeit subject to contract). That seems to me to be all part of the freedom of negotiation under the umbrella. ‘
Mann J
[2005] EWHC 1606 (Ch)
Bailii
Companies Act 1985 459
England and Wales
Citing:
CitedVernon v Bosley (1) QBD 1993
The court discussed the extent to which a judge had control over the admission of otherwise admissible evidence: ‘A point comes at which literal admissibility has to yield to the constraints of proportionality . . such proportionality may in any one . .
CitedVernon 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 . .
CitedRe Unisoft Group Limited (No 3) ChD 1994
When considering applications to strike out parts of pleadings in a s459 application, the courts had to recognise the need to be careful not to allow the parties to trawl through irrelevant grievances. B The statutory definition of ‘shadow director’ . .
CitedPrudential Assurance Co Ltd v Prudential Insurance Co of America ChD 20-Dec-2002
The parties had undertaken negotiations on a ‘without prejudice’ basis. One now sought freedom to rely upon the other’s statements.
Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of . .
CitedUnilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .

Cited by:
See AlsoWilkinson v West Coast Capital and others ChD 21-Dec-2005
. .

These lists may be incomplete.
Updated: 24 January 2021; Ref: scu.228968

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 only have been accepted to support directly some specific evidence of an accomplice.
Held: A formal accomplice direction was not required. It was enough to warn the jurors of the dangers. Evidence whose nature was corroborative need not be directly related to evidence given by an accomplice. ‘While we in no way wish to detract from the obligation upon a judge to advise a jury to proceed with caution where there is material to suggest that a witness’s evidence may be tainted by an improper motive, and the strength of the evidence must vary according to the facts of the case, we cannot accept that there is any obligation to give the accomplice warning with all that entails, when it is common ground that there is no basis for suggesting that the witness is a participant or in any way involved in the crime the subject matter of the trial.’
Ackner LJ
[1982] CLY 563, [1982] 1 WLR 461, [1982] 1 All ER 807
England and Wales
Citing:
AppliedRegina v Mullins 1848
. .
AppliedRex v Baskerville 1916
. .
ExplainedRegina v Prater CCA 1960
Where one defendant gave evidence incriminating his co-defendant, just as in cases where an accomplice gave evidence for the prosecution, a full corroboration warning was desirable. . .
ExplainedDavies v Director of Public Prosecutions HL 1954
Half a dozen youths engaged in a fist fight with another group, but one of their number suddenly produced a knife and stabbed one of their opponents to death. One of the prosecution witnesses was a youth named Lawson. He gave evidence of an oral . .
CitedRegina v Kilbourne HL 1973
The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first . .

Cited by:
CitedRegina v Spencer; Regina v Smails HL 24-Jul-1986
The defendants were nurses employed at Rampton secure hospital accused of assaults on patients. The witnesses against them had been inmates. They complained that the judge had failed to direct the jurors about the dangers of relying upon their . .

These lists may be incomplete.
Updated: 21 January 2021; Ref: scu.191972

North Australian Territory Co v Goldsborough, Mort and Co: CA 1893

The court considered the propriety of the cross examination of a witness of the statements of others. The plaintiff company in liquidation, sought rescission of a contract for the purchase of land. In the course of the liquidation and after the commencement of the action certain persons were examined under section 115 of the 1862 Act. Their depositions were then taken. A commission subsequently issued in the action for the examination of witnesses abroad, and one of the persons who had been examined under s 115 was examined under the commission on behalf of the Defendants. During this cross-examination on behalf of the Plaintiffs he was asked as to the truth of certain of his answers given in the examination under section 115, and the answers were read to him from the depositions. He said that the statements contained in them were correct. He was also cross-examined as to certain answers given by other persons who had been examined under sect.115, and those answers were read to him. The Defendants sought to inspect and copy those depositions used in the cross-examination.
Held: The defendants were not entitled to the inspection sought.
Lord Esher MR said that: ‘answers given in an examination under sect.115 never can be used as evidence or as proof, except for the purpose of contradicting a witness; they are not taken as evidence in an action, but for the purpose of obtaining information to enable the company or its liquidator to decide as to the propriety of bringing or continuing an action’. As to the depositions: ‘are in the nature of information, and there is no injustice in the fact that the person conducting a cause is in possession of information of which the other side is not.’
Lindley LJ said: ‘It is said that they are entitled because these depositions ought to have been scheduled in the Plaintiffs’ affidavit of documents as documents in their possession relating to matters in dispute in the action; but, if they had been scheduled, privilege would as a matter of course have been claimed for them, and the Defendants would never have seen them; and it would not be fair to the Plaintiffs if we were to treat these depositions as documents in their possession unprotected by a claim of privilege.’
Lord Esher MR, Lindley LJ, Cotton LJ
[1893] 2 Ch 381
Companies Act 1862 115
Australia
Cited by:
CitedCharnock and Others v Rowan and Others CA 20-Jan-2012
14 passengers in a bus hit from behind at a slow speed had all claimed whiplash injury. The expert had said that the accepted speed required to produce such an injury was a change of 3mph, which would require an impact at 30mph, whereas the evidence . .

These lists may be incomplete.
Updated: 16 January 2021; Ref: scu.450440

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 have before it all the evidence it required to fulfil its task. Unless it was clear that the majority of questions asked could be resisted on the grounds of legal professional privilege, the rquest should be complied with.
Mr Justice Brooke Lord Justice Chadwick Lord Justice Scott Baker
[2004] EWCA (Civ) 330, Times 16-Apr-2004
Bailii
Evidence (Proceedings in other Jurisdictions) Act 1975
England and Wales
Citing:
CitedGenira Trade and Finance Inc v CS First Boston and Standard Bank (London) Limited CA 21-Nov-2001
The court considered the circumstances under which it could be called upon to assist a foreign court.
Held: It is the duty and pleasure of the court to give all such assistance as it can to the requesting court within the limits imposed by the . .
CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
CitedThree Rivers District Council v Bank of England (No 5) ComC 4-Nov-2003
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 . .
CitedBalabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Appeal fromUnited States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
CitedWaugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .
CitedRe Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
CitedRegina 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, . .
CitedIn Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
CitedAnderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .
CitedWheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
CitedCollins 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 . .
CitedJarman v Lambert and Cooke Contractors Ltd CA 1951
The words ‘pending’ or ‘anticipated’ in the subsection were the words habitually used in connection with legal professional privilege, and ‘The privilege only obtains if litigation is ‘pending or anticipated’, and in that connection it is well . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .

These lists may be incomplete.
Updated: 12 January 2021; Ref: scu.194836

Armory v Delamirie: KBD 1722

A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the jewel, and shew it not to be of the finest water, they [the jury] should presume the strongest against him, and make the value of the best jewels the measure of their damages:’ and ‘That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover?’ The court applied the maxim ‘maxim omnia praesumuntur contra spoliatorem’ All things are assumed against the interests of a spoliator.
If the negligence of the defendant has led to evidence being unavailable which might otherwise have assisted the victim of that negligence, he should not have the benefit of any consequent doubt.
Pratt CJ
(1722) 1 Stra 505, [1722] EWHC KB J94, [1722] 93 ER 664
Bailii
England and Wales
Cited by:
CitedAllen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .
CitedMalhotra v Dhawan CA 26-Feb-1997
There had been litigation as to the payment due on fees earned during the partnership. One party had destroyed the evidence which would have settled many issues. The court discussed the principle that it should presume all against a destroyer of . .
CitedGray v Haig and Son 1855
Gray was the agent for Haig and Son, selling whisky on commission. On the termination of the agency a dispute arose as to the amount of the commission due and an account was ordered. Gray had destroyed his books, which were essential to the taking . .
CitedParker v BA Board 1982
The rights and obligations of a finder were considered. The court explained the balancing exercise required of the law when deciding to whom property should be returned and how the balance should be struck: ‘The rule as stated by Pratt CJ must be . .
CitedDixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
CitedDobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
CitedPritchard Joyce and Hinds v Batcup and Another QBD 17-Jan-2008
The claimant solicitors sought contributions from counsel to the damages they had been obliged to pay to their client in negligence.
Held: Underhill J said: ‘My task is not to seek to decide definitively whether LL were liable in negligence to . .
CitedMount v Baker Austin CA 18-Feb-1998
The Defendant solicitors had allowed the Plaintiff’s claim to be struck out for want of prosecution. The court considered how to calculate the value of the loss of the chance of pursuing the claim: ‘1. The legal burden lies on the plaintiff to prove . .
CitedZabihi v Janzemini and Others CA 30-Jul-2009
The claimant said that he had left valuable jewelry with the defendant for sale. The defendant said at first they had been stolen, but then returned jewelry which the claimant denied was what had been left. The defendant appealed a finding that he . .
CitedChannon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .

These lists may be incomplete.
Updated: 11 January 2021; Ref: scu.190236

Hammersmith Hospitals NHS Trust and Others v Troup Bywaters and Anders (A Firm): TCC 12 Nov 1999

Contract – professional negligence – duty of care – general consulting engineers – advice to NHS trust whether negligent – expert evidence – admissibility of evidence in the same profession with specialist professional expertise.
His Honour Judge John Toulmin Cmg Qc
[1999] EWHC Technology 273
Bailii
England and Wales

Updated: 10 January 2021; Ref: scu.185886

Allan v The United Kingdom: ECHR 5 Nov 2002

The appellant had been convicted of murder. The police had encouraged an informant to associate with him whilst in prison and to entice admissions from him. They had also recorded conversations whilst he was in the police station cells.
Held: No system regulated such recordings, and accordingly the recordings were not according to law, and were an infringement of his human rights. As to the conversations with the fellow inmate, it was not the function of the Court to adjudicate on matters of fact, nor as to the admissibility of evidence. The question for the court was whether the behaviour was such as to render the proceedings as a whole unfair. This included whether there had been shown due respect for the rights of the defence. The right against self-incrimination includes the right not to incriminate oneself through coercion or oppression, in defiance of the will of the accused. He had here exercised his right of silence on interview. The police had coached the informant to try to extract a confession, and the confessions obtained were not spontaneous or unprompted. The confessions were obtained in defiance of his will, and in breach of his article 6 rights to a fair trial. Art 13 had also been infringed by the use of wrongful surveillance without effective remedy.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Violation of Art. 6-1 ; Violation of Art. 13 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
Times 12-Nov-2002, 48539/99, [2002] ECHR 697, [2002] ECHR 702
Worldlii, Bailii
European Convention on Human Rights Art 8.1 Art 6 Art 13

Updated: 09 January 2021; Ref: scu.177895

Leslie Tiwari v The State (Appeal No 76 of 2001): PC 29 May 2002

(Trinidad and Tobago) The defendant appealed convictions for rape and other offences based upon identification evidence. He had not been represented at the trial. He had not been warned of his freedom to call witnesses.
Held: Where a defendant was unrepresented, the court should warn him of the advisability of having professional representation. Witnesses whose evidence might have been called by him would have given admissible and relevant evidence. The case was remitted for that evidence to be admitted, and the conviction re-examined by the Court of Appeal of Trinidad and Tobago. Time spent in prison after a notice of appeal has been lodged with the Board, should count toward time served.
Lord Nicholls of Birkenhead Lord Hutton Lord Millett Lord Scott of Foscote Sir Andrew Leggatt
[2002] UKPC 29, (Appeal No 76 of 2001)
PC, PC, Leslie Tiwari v. The S’ target=’_n’>PC, Bailii, PC
Commonwealth
Citing:
CitedRegina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .
CitedRegina v Carter (Josef) 1960
The defendant appealed against his conviction. Though unrepresented at trial, the judge had not informed him of his opportunity to call witnesses. Counsel had failed to attend and an adjournment has been refused.
Held: The appeal succeeded. A . .

Cited by:
CitedKumar Ali v The State (Appeal 56 of 2004) and Leslie Tiwari v The State PC 2-Nov-2005
PC (Trinidad and Tobago) The Board was asked to determine the date from which an unsuccessful appellant’s sentence should run. Pending an appeal or whilst on remand, a prisoner would be held in less demanding . .

These lists may be incomplete.
Updated: 08 January 2021; Ref: scu.172279

Regina v Clive Louden Carass: CACD 19 Dec 2001

When a defendant was accused of an offence under the section, and wished to raise a defence under sub-section 4, the duty of proof placed on him by the sub-section amounted to a duty to bring sufficient evidence to raise the defence, and the section did not transfer the burden from the prosecution.
Held: To justify a transfer of the burden of proof, it had to be shown that this was required, and a persuasive burden rather than an evidential burden was not justified. There was no sufficient threat to society which required a higher burden. The words should be read to require the defendant to adduce sufficient evidence.
Lord Justice Waller, Mr Justice Rougier and Mr Justice Stanley Burnton
Times 21-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Crim 2845, [2002] 1 WLR 1214, [2002] 2 Cr App R 4
Bailii
Insolvency Act 1986 206 (1)(a)
England and Wales
Citing:
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedRegina 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 by:
DistinguishedRegina v Daniel CACD 22-Mar-2002
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction . .
CitedNorwood v Director of Public Prosecutions Admn 3-Jul-2003
The appellant a BNP member had displayed a large poster in his bedroom window saying ‘Islam out of Britain’. He was convicted of an aggravated attempt to cause alarm or distress. The offence was established on proof of several matters, unless the . .
Wrongly DecidedSheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .

These lists may be incomplete.
Updated: 07 January 2021; Ref: scu.167393

Regina v Dervish and Another: CACD 12 Dec 2001

The defendant had stayed silence at interview, and later at charge. During the trial, the judge ruled that the failure to answer questions at interview was inadmissible, but left to the jury the possibility of drawing adverse inferences from the silence at charge. He appealed.
Held: So long as the fairness of the trial was upheld, the judge was right in allowing a distinction between the two stages. The defendant had merely been put back at the position he would have been in but for the police failings, and had had full opportunity to explain at the trial why he had remained silent.
Lord Justice Kay, Sir Ian Kennedy and Judge David Clark QC
Gazette 21-Feb-2002, [2001] EWCA Crim 2789
Bailii
Criminal Justice and Public Order Act 1994 34(1)(a)
England and Wales

Updated: 07 January 2021; Ref: scu.167316

Regina v Pearce: CACD 11 Dec 2001

The defendant appealed against his conviction for murder. He said that the court had not allowed his alcoholism as a characteristic for the purposes of testing the defence of provocation, and that the evidence of his long standing partner should be treated as equivalent to that of a wife, making her evidence admissible but not compellable.
Held: As to the admission of evidence, that this was within the area of discretion allowed to convention states, and was a proper balance between the need for respect for family life, and the wider needs of the community. As to the alcohol abuse, there was no evidence of it having reached such a stage as to affect his control over how much he drank. The conviction stood.
Lord Justice Kennedy, Mr Justice Hughes, And, Mr Justice Penry-Davey
Times 21-Jan-2002, Gazette 21-Feb-2002, [2001] EWCA Crim 2834, [2002] 1 Cr App R 39, [2002] 1 WLR 1553
Bailii
Police and Criminal Evidence Act 1984 80(1), Homicide Act 1957 3
Citing:
CitedX, Y and Z v The United Kingdom ECHR 22-Apr-1997
The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for . .
CitedRegina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .

Cited by:
CitedBala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .

These lists may be incomplete.
Updated: 07 January 2021; Ref: scu.167064

Re B (A Child): CA 18 Oct 2017

The court heard a case in which in the course of a child residence dispute F had made and sought to have use before the court, covert recordings of interviews and telephone conversations with practitioners.
Held: The actual matters had been decided adequately without the recordings, but the court acknowledged both the difficulties arising and the absence of authority, and said that an initation would be made to the Family Justice Council to consider the issue.
Sir James Munby P FD, King LJ
[2017] EWCA Civ 1579
Bailii
England and Wales

Updated: 04 January 2021; Ref: scu.597402

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

Applications for further disclosure on the grounds of collateral waiver.
Nugee J
[2017] EWHC 387 (Ch)
Bailii
England and Wales
Citing:
See AlsoHolyoake 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 AlsoHolyoake and Another v Candy and Others ChD 29-Nov-2016
Application by the Defendants for security for costs. . .
See AlsoHolyoake 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 fromCandy and Others v Holyoake and Another CA 28-Feb-2017
Appeal against grant of ‘notification injunction’ . .
See AlsoCandy 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 AlsoCandy v Holyoake and Others (No 2) QBD 22-Nov-2017
. .
See AlsoHolyoake and Another v Candy and Others ChD 21-Dec-2017
. .

These lists may be incomplete.
Updated: 24 December 2020; Ref: scu.593123

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.’
Wessels JA
1976 (3) SA 352
England and Wales
Cited by:
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
[2016] UKSC 6, [2016] WLR(D) 74, [2016] PIQR P9, 2016 GWD 4-97, 2016 SCLR 203, (2016) 149 BMLR 17, [2016] ICR 325, 2016 SLT 209, [2016] 1 WLR 597, 2016 SC (UKSC) 59, UKSC 2014/0247

These lists may be incomplete.
Updated: 19 December 2020; Ref: scu.606456

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.’
Dillon LJ
(1990) Ch 98
England and Wales
Citing:
CitedChadwick 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 . .
(1886) 16 QBD 561
See AlsoDubai 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 . .
[1990] 1 WLR 731, [1990] Ch 98, [1990] 1 Lloyds Rep 120

Cited by:
CitedBrown 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 . .
Times 04-Jan-02, Gazette 21-Feb-02
CitedSumitomo 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 . .
Times 15-Aug-01, Gazette 06-Sep-01, [2001] EWCA Civ 1152, [2001] 2 Lloyd’s Rep 517, [2002] 4 All ER 68, [2002] CP Rep 3, [2001] CPLR 462, [2001] 2 LLR 517, [2002] 1 WLR 479
See AlsoDubai 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. . .
Gazette 19-Feb-92
See AlsoDubai 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. . .
Times 25-Jun-90

These lists may be incomplete.
Updated: 18 December 2020; 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.’
Gazette 24-Jun-1992, Gazette 15-Jul-1992, [1992] 3 All ER 844, [1993] QB 244
Theft Act 1968 31, Insolvency Act 1986 433, Insolvency Rules 1986 6.175
England and Wales
Cited by:
CitedClingham (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 . .
Times 21-Oct-02, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27
See AlsoRegina 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 . .
Times 11-Jun-01, Gazette 12-Jul-01, [2001] EWCA Crim 1260, [2001] 3 WLR 751
See AlsoRegina 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 . .
Times 04-Dec-01, Gazette 17-Jan-02, [2001] UKHL 62, [2001] 3 WLR 1562, [2002] 2 AC 69, [2002] 1 All ER 257, [2002] HRLR 9, [2002] BPIR 370, [2002] 1 Cr App R 36, [2002] UKHRR 169

These lists may be incomplete.
Updated: 18 December 2020; 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.’
Lord Justice Roch
Times 16-Feb-2000, [2000] EWCA Crim 3, 98/6926/27/28 SI
Bailii
England and Wales
Citing:
CitedRegina v Ward CACD 1993
The court considered the admission of medical evidence to support other evidence against a defendant as to his propensity. ‘But we conclude on the authorities as they now stand that the expert evidence of a psychiatrist or a psychologist may . .
[1993] 96 Crim App R 1
CitedRegina 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 . .
[1975] QB 834, (1974) 60 Cr App R 80, [1975] 1 All ER 70, [1975] 2 WLR 56, (1975) 60 Cr App R 834

Cited by:
CitedRegina 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 . .
[2003] EWCA Crim 927
ApprovedPinfold, 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 . .
[2003] EWCA Crim 3643, Times 09-Jan-04, [2004] 2 Cr App R 5

These lists may be incomplete.
Updated: 18 December 2020; 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.
Schiemann LJ, Poole J
Times 20-Feb-2001, [2001] EWHC Admin 582
Bailii
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 toClingham (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 . .
Times 21-Oct-02, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27

Cited by:
Appeal fromClingham (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 . .
Times 21-Oct-02, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27

These lists may be incomplete.
Updated: 17 December 2020; 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.
Chadwick J
Times 11-Oct-1994, [1994] CLY 3555
Civil Liability (Contributions) Act 1978, Civil Evidence Act 1968 2 4 6
Cited by:
CitedIS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
[2004] EWCA Civ 171, Times 10-Mar-04, [2004] EWCA Civ 275, Gazette 01-Apr-04
CitedKuwait 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 andpound;130,000,000 sought a stay of execution pending an appeal. The judge had found that the appeal was arguable. . .
[1999] EWCA Civ 1528

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.77850

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’.
Wills J, Charles J
(1893) 68 LT NS 831
England and Wales
Cited by:
CitedUnited 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 . .
[2004] EWCA (Civ) 330, Times 16-Apr-04

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.195747

Regina v Mullins: 1848

(1848) 3 Cox CC 526
England and Wales
Cited by:
AppliedRegina 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 . .
[1982] CLY 563, [1982] 1 WLR 461, [1982] 1 All ER 807

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.191973

Regina v Brackenbury: 1893

Day J
(1893) 17 Cox 628
Citing:
Not followedRegina 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. . .
(1888) (15 Cox 656)

Cited by:
CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
[1914] UKPC 1, [1914] AC 599, [1914] UKPC 16, [1914-15] All ER Rep 874, (1914) 24 Cox CC 174

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.184192

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?’
Lord Tenterden CJ
[1989] STC 520
England and Wales
Cited by:
CitedGibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Times 04-Feb-98, [1998] UKPC 3, [1998] AC 786
Appeal fromRegina 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 . .
[1991] 2 AC 283, [1991] 2 WLR 682, [1991] 3 All ER 623

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.184707

Regina v Jones; Regina v Jenkins: CACD 5 Jun 2003

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.
Auld LJ, Silber, Owen JJ
Times 19-Jun-2003
Citing:
CitedRegina v Cheema CACD 5-Sep-1993
There is no rule requiring full a corroboration direction to be given for a co-defendant’s evidence to be admitted. The Court of Appeal recommended a review of law on corroboration of a witness’s evidence. Lord Taylor CJ said: ‘The rule of practice . .
Gazette 03-Nov-93, Times 06-Oct-93, Independent 05-Sep-93, [1994] 1 WLR 147, (1993) 98 Cr App R 195
CitedRegina v Knowlden and Knowlden CACD 1983
The court set out warnings for the jury when considering evidence from a co-accused. The rule in Prater was not a rule of law but ultimately in the discretion of the judge: and that ‘the customary clear warning to examine the evidence of each . .
(1983) 77 Cr App R 94

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.183673

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.’
Simon Brown, Balcombe, Peter Gibson LJJ
25 February 1993 (unreported), Court of Appeal (Civil Division) Transcript No 205 of 1993, Times 19-Mar-1993
England and Wales
Cited by:
CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
[2003] EWCA Civ 715, Times 03-Jun-03, Gazette 17-Jul-03
CitedSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
[2003] EWCA Civ 1630, Times 25-Nov-03, Gazette 15-Jan-04, [2004] 1 WLR 667, [2004] 1 All ER 1125
CitedBNP 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, . .
UKEAT/0218/04/RN, [2004] UKEAT 0218 – 04 – 3003, UKEAT/0218/04, [2004] IRLR 508
CitedBrunel 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 . .
[2007] EWCA Civ 482, [2007] IRLR 592
CitedBrodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
[2007] UKEAT 0526 – 07 – 0702
CitedX 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. . .
[2018] UKEAT 0261 – 17 – 0908

These lists may be incomplete.
Updated: 15 December 2020; 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.’
Goff and Templeman LJJ
[1980] 1 WLR 614, [1980] 1 All ER 1049, [1983] RPC 1
England and Wales
Citing:
ApprovedHeslop 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, . .
[1837] 3 My and Cr 183
CitedHughes 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 . .
[1958] 3 All ER 179, [1958] P 224
CitedRobins 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. . .
(1872) LR 13 Eq 440
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 . .
[1983] RPC 1

Cited by:
CitedIsmail 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 . .
Gazette 06-Mar-96, Times 23-Feb-96
CitedFrench 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 . .
[2012] EWCA Civ 1180
CitedWalsh 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. . .
[2002] EWHC 1344 (QB)
CitedX 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. . .
[2018] UKEAT 0261 – 17 – 0908

These lists may be incomplete.
Updated: 15 December 2020; Ref: scu.182182

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.’
Walton J
[1975] Ch 185, [1974] 2 All ER 465
England and Wales
Cited by:
CitedDerby 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 . .
[1991] 1 WLR 652, [1991] 2 All ER 901
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
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 . .
[2003] UKHL 13, Times 14-Mar-03, [2003] 2 WLR 692, [2003] 2 AC 687, (2003) 71 BMLR 209, [2003] 1 FCR 577, [2003] 2 All ER 113
CitedTrail 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 . .
[2013] EWCA Civ 553, [2013] PTSR 987, [2013] WLR(D) 186
CitedTrail 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 . .
[2015] UKSC 18, [2015] PTSR 411, [2015] 1 WLR 1406, [2015] WLR(D) 160, [2015] 3 All ER 946, UKSC 2013/0153

These lists may be incomplete.
Updated: 15 December 2020; 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.
Lord Justice Kennedy, Mr Justice Poole and Mr Justice David Steel
Times 19-Nov-2001
Criminal Justice and Public Order Act 1994 35(2)
England and Wales

Updated: 15 December 2020; Ref: scu.166837

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.
Lord Mustill
Gazette 21-Jun-1995, Independent 26-May-1995, Times 25-May-1995, [1995] 1 AC 596, [1995] 2 WLR 737, [1995] CLY 938
England and Wales
Citing:
Appeal fromRegina 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 . .
Gazette 30-Mar-94, Times 02-Mar-94, Independent 25-Feb-94, [1994] 1 WLR 809

Cited by:
CitedO’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 . .
[2003] EWCA Civ 1085, Times 22-Aug-03, Gazette 02-Oct-03

These lists may be incomplete.
Updated: 14 December 2020; 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’
Lord Steyn
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
England and Wales
Citing:
CitedRegina 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 . .
[1995] 2 Cr App R 84

Cited by:
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
[2003] UKHL 69, Times 19-Dec-03, [2004] 1 Cr App R 26, [2004] 1 All ER 467, [2004] 1 WLR 56
CitedRegina 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 . .
Times 06-Jul-01, Gazette 31-Aug-01, [2001] 3 WLR 206, [2001] UKHL 37, [2002] 2 AC 545, [2002] 1 All ER 2, [2001] HRLR 55, [2001] 2 Cr App R 28, [2001] UKHRR 1074, [2001] 3 All ER 577
CitedGhaidan 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 . .
[2004] UKHL 30, [2004] 3 WLR 113, [2004] 2 AC 557, [2004] 3 All ER 411, 16 BHRC 671, [2004] 2 FCR 481, [2004] UKHRR 827, [2004] 2 P and CR DG17, [2004] 2 FLR 600, [2004] Fam Law 641, [2004] NPC 100, [2004] 27 EGCS 128
CitedIan 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 . .
[1999] UKPC 44, Appeal No 4 of 1999
AppliedThompson 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 . .
[1998] UKPC 6, [1998] AC 811
CitedTeeluck 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 . .
[2005] UKPC 14, Times 04-May-05, [2005] 1 WLR 2421
CitedMantoor 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 . .
[2005] UKPC 47, [2006] 1 WLR 796
CitedPayton, 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 . .
[2006] EWCA Crim 1226
CitedOnasanya 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 . .
[2006] EWCA Civ 1775 (Admin), [2006] 4 All ER 459
CitedLord-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 . .
[2009] EWHC 87 (QB), [2009] EWHC 87 (Admin)
CitedKrishna 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.
[2011] UKPC 18
CitedShirley, 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 . .
[2013] EWCA Crim 1990
CitedRegina 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: . .
[2004] EWCA Crim 1074, [2004] 2 Cr App R 30
CitedGAI 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 . .
[2012] EWCA Crim 2033

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.86077

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.
(1848) 11 D 343
Scotland
Cited by:
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
[2016] UKSC 6, [2016] WLR(D) 74, [2016] PIQR P9, 2016 GWD 4-97, 2016 SCLR 203, (2016) 149 BMLR 17, [2016] ICR 325, 2016 SLT 209, [2016] 1 WLR 597, 2016 SC (UKSC) 59, UKSC 2014/0247

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.606454

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.’
(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
United States
Cited by:
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
[2016] UKSC 6, [2016] WLR(D) 74, [2016] PIQR P9, 2016 GWD 4-97, 2016 SCLR 203, (2016) 149 BMLR 17, [2016] ICR 325, 2016 SLT 209, [2016] 1 WLR 597, 2016 SC (UKSC) 59, UKSC 2014/0247

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.606455

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…’
[1984] 38 SASR 45
Australia
Cited by:
ApprovedDoughty 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 . .
[2008] EWHC 522 (Admin)
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
[2016] UKSC 6, [2016] WLR(D) 74, [2016] PIQR P9, 2016 GWD 4-97, 2016 SCLR 203, (2016) 149 BMLR 17, [2016] ICR 325, 2016 SLT 209, [2016] 1 WLR 597, 2016 SC (UKSC) 59, UKSC 2014/0247

These lists may be incomplete.
Updated: 13 December 2020; Ref: scu.267002

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’.’
Bodey J
[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 . .
    Independent 17-Jan-96, [1996] AC 563, [1996] 1 FLR 80, [1995] UKHL 16, [1996] Fam Law 74, [1996] 1 FCR 509, [1996] 2 WLR 8, [1996] 1 All ER 1
  • 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 . .
    [2001] 1 WLR 340, [2000] Po LR 98, [2000] EWHC 559 (QB), [2001] 1 All ER 562

Cited by:

These lists may be incomplete.
Updated: 09 December 2020; Ref: scu.196918

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
(1883) II QBD 440
England and Wales
Cited by:

These lists may be incomplete.
Updated: 09 December 2020; 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.
(1883) 9 PD 6
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 . .
    Times 15-Aug-01, Gazette 06-Sep-01, [2001] EWCA Civ 1152, [2001] 2 Lloyd’s Rep 517, [2002] 4 All ER 68, [2002] CP Rep 3, [2001] CPLR 462, [2001] 2 LLR 517, [2002] 1 WLR 479

These lists may be incomplete.
Updated: 09 December 2020; Ref: scu.196686

Regina v Koerns: CACD 2000

[2000] Crim LR 473
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 . .
    [2003] EWCA Crim 3643, Times 09-Jan-04, [2004] 2 Cr App R 5

These lists may be incomplete.
Updated: 09 December 2020; 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.’
Scarman LJ
[1975] 62 Cr App R 53
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 . .
    [2003] EWCA Crim 3643, Times 09-Jan-04, [2004] 2 Cr App R 5
  • 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 . .
    [2006] EWCA Crim 1902, Times 24-Aug-06, [2006] 1 WLR 3092

These lists may be incomplete.
Updated: 09 December 2020; Ref: scu.190485

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.’
Mathew J, Denman J
(1886) 16 QBD 561
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 . .
    [1959] 1 WLR 702
  • 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 . .
    Times 15-Aug-01, Gazette 06-Sep-01, [2001] EWCA Civ 1152, [2001] 2 Lloyd’s Rep 517, [2002] 4 All ER 68, [2002] CP Rep 3, [2001] CPLR 462, [2001] 2 LLR 517, [2002] 1 WLR 479
  • 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 . .
    (1990) Ch 98

These lists may be incomplete.
Updated: 05 December 2020; 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.’
Chadwick v. Bowman
[1959] 1 WLR 702
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 . .
    (1886) 16 QBD 561

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 . .
    Times 15-Aug-01, Gazette 06-Sep-01, [2001] EWCA Civ 1152, [2001] 2 Lloyd’s Rep 517, [2002] 4 All ER 68, [2002] CP Rep 3, [2001] CPLR 462, [2001] 2 LLR 517, [2002] 1 WLR 479

These lists may be incomplete.
Updated: 05 December 2020; Ref: scu.196687

Regina v Straffen: CCA 20 Aug 1952

The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions made at Broadmoor and of the earlier allegations.
Held: The Judges’ Rules were intended to control the admission of statements made to the police, not statements alsewhere. The statement was admissible. The defendant had denied the murder but in doing so had admitted the earlier murders. The general rules is not to admit such evidence. The similar fact evidence could be described as evidence of pure propensity to commit crimes similar to that with which he was charged.
Slade, Devlin, Gorman JJ
[1952] 2 QB 911
England and Wales
Citing:

  • Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
    The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
    [1894] AC 57, [1893] UKPC 56
  • Cited – Harris v Director of Public Prosecutions HL 1952
    The House discussed the principle laid down in Makin’s case as to the admission of similar fact evidence.
    Held: After approving the case, Lord Simon said: ‘It is, I think, an error to attempt to draw up a closed list of the sort of cases in . .
    [1952] 1 The Times LR 1075
  • Cited – Perkins v Jeffery 1915
    Similar fact evidence might be admitted to help identify the defendant. . .
    [1915] 2 KB 702, 31 TLR 444, 113 LT 456
  • Cited – Thompson v Director of Public Prosecutions HL 1918
    The defendant was charged with gross indecency against boys. The defendant denied that he was the offender. Evidence was admitted that on arrest the defendant was in possession of powder puffs and that a search of his rooms uncovered indecent . .
    [1918] AC 221, (1918) 13 Cr App R 61

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 . .
    [2003] EWCA Civ 1085, Times 22-Aug-03, Gazette 02-Oct-03
  • 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 . .
    [2005] UKHL 26, Times 29-Apr-05, [2005] 2 WLR 1038, [2005] 2 All ER 931, [2005] 2 AC 534

These lists may be incomplete.
Updated: 02 December 2020; Ref: scu.186039

Berger v Raymond Sun Ltd: 1984

The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil and in criminal cases.
Warner J
[1984] 1 WLR 625
England and Wales
Citing:

  • Cited – Sattin v National Union Bank Ltd CA 21-Feb-1978
    The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it.
    Held: The proposed . .
    (1978) 122 SJ 367
  • Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
    The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
    [1894] AC 57, [1893] UKPC 56

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 . .
    [2003] EWCA Civ 1085, Times 22-Aug-03, Gazette 02-Oct-03
  • Cited – Thorpe v Chief Constable of Greater Manchester Police CA 1989
    The plaintiff was arrested at a demonstration, charged with obstructing the highway and convicted before the magistrates. His conviction was quashed by the Crown Court on appeal. He sued for assault, unlawful arrest, false imprisonment and malicious . .
    [1989] 1 WLR 665
  • 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 . .
    [2005] UKHL 26, Times 29-Apr-05, [2005] 2 WLR 1038, [2005] 2 All ER 931, [2005] 2 AC 534

These lists may be incomplete.
Updated: 02 December 2020; Ref: scu.186047

Grobbelaar v Sun Newspapers Ltd: CA 9 Jul 1999

With the new Civil Procedure Rules, it was no longer correct that a court could not exclude evidence which was relevant, on the grounds that its probative value was outweighed by its prejudicial effect. The court now has full power and discretion to make such orders. ‘The just resolution of this case depends on the jury keeping their focus on match-fixing and not being distracted by matters that are insufficiently probative, given their potential for prejudice.’
Potter LJ
Times 12-Aug-1999
Civil Procedure Rules 32
England and Wales
Citing:

Cited by:

  • Appeal from – Grobbelaar v News Group Newspapers and Another CA 18-Jan-2001
    . .
    [2001] EWCA Civ 1213
  • 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 . .
    [2003] EWCA Civ 1085, Times 22-Aug-03, Gazette 02-Oct-03
  • See Also – Grobbelaar v News Group Newspapers Ltd and Another CA 18-Jan-2001
    The claimant had been awarded andpound;85,000 damages in defamation after the defendant had wrongly accused him of cheating at football. The newspaper sought to appeal saying that the verdict was perverse and the defence of qualified privilege . .
    [2001] EWCA Civ 33, [2001] EMLR 18, [2001] 2 All ER 437
  • See Also – Grobbelaar v News Group Newspapers Ltd and Another HL 24-Oct-2002
    The claimant appealed against a decision of the Court of Appeal quashing the judgement in his favour for damages for defamation.
    Held: The Court of Appeal was not able to quash a jury verdict as perverse, and the appeal succeeded. An appellate . .
    Times 25-Oct-02, [2002] UKHL 40, [2002] 1 WLR 3024, [2002] 4 All ER 732, [2003] EMLR 1

These lists may be incomplete.
Updated: 02 December 2020; Ref: scu.186052

Sattin v National Union Bank Ltd: CA 21 Feb 1978

The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it.
Held: The proposed evidence was admissible. (Lawton LJ) If a defendant in this class of case said ‘My system for safeguarding customers’ property is a reasonably safe one’ it is relevant for the plaintiff to call evidence to show that experience should have taught the defendant that it was not a safe system. The evidence was also admissible in order to rebut the suggestion that the bank was unfortunate in losing the customer’s property albeit they used all reasonable care to safeguard it. ‘A fundamental principle of the law of evidence, both in civil and criminal cases, is that evidence must be confined to what is relevant. In general, if there is an issue whether A did a particular act on a particular day, then the fact that he may have done the same act on another day is not relevant to that issue. To that fundamental rule there are a number of exceptions.’ and ‘That principle of law [from Makin] in criminal cases applies equally in civil cases.’ (Megaw LJ) ‘There was a good deal of argument before us by counsel on each side: counsel for the plaintiff appellant seeking to show the similarities between matters arising in the present case and matters involved in the previous incident as to which it is sought to adduce evidence; counsel for the defendant respondent seeking to stress the differences between the two.
It is no objection to such evidence being tendered that it relates to one previous incident only. It does not need to be a defective ‘system’. It is no objection to the evidence being tendered that it is going to be contended on behalf of the defendant employer that the previous alleged incident did not happen at all, or that, if it did happen, there were material differences which would prevent it from having any substantial bearing upon the instant case: as, for example, where the claim by the employee is that he tripped over some piece of plant or some object left on the floor which ought not to have been there and evidence is given of another similar accident on a previous occasion, it would be no objection to the admissibility of the evidence if the case for the employer defendant was to be that, on the occasion of the previous incident, if (which he denies) it happened at all, there had been a sudden failure of the lighting system through no fault on the part of the employer. That would not affect the admissibility of the evidence though it might destroy all its weight.’
Lawton LJ
(1978) 122 SJ 367
England and Wales
Citing:

  • Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
    The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
    [1894] AC 57, [1893] UKPC 56

Cited by:

  • Cited – Berger v Raymond Sun Ltd 1984
    The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil . .
    [1984] 1 WLR 625
  • 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 . .
    [2003] EWCA Civ 1085, Times 22-Aug-03, Gazette 02-Oct-03
  • 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 . .
    [2005] UKHL 26, Times 29-Apr-05, [2005] 2 WLR 1038, [2005] 2 All ER 931, [2005] 2 AC 534

These lists may be incomplete.
Updated: 02 December 2020; Ref: scu.186046

In re Y and K (Minors) (Split hearing: Evidence): CA 7 Apr 2003

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.
References: Times 18-Apr-2003
Judges: Hale, Thorpe LJJ
Statutes: Children Act 1989 31 98
Jurisdiction: England and Wales
This case cites:

  • Dicta corrected – In re B CA 2002
    . .
    ([2002] 2 FLR 1133)

These lists may be incomplete.
Last Update: 26 November 2020; Ref: scu.180858

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 the presumption in law that the Intoximeter system in general works. The evidence in such cases did not go to the ability of the equipment to measure the levels of alcohol in the deep lungs. Evidence that the machines might misread alcohol held in the mouth was not relevant since each defendant admitted that no such alcohol was present. Evidence should not be put before the Court as to whether the ECIR instrument should not have received the approval of the Secretary of State and/or that approval should have been revoked and/or that it had been modified
References: Times 03-Dec-2001, [2002] RTR 395, CO/3794/2001, CO/3710/2001
Judges: Lord Justice Pill, Mr Justice Cresswell
Statutes: Road Traffic Act 1988 5 15(2)
Jurisdiction: England and Wales
This case cites:

  • Approved – 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 . .
    ([1985] RTR 49)

This case is cited by:

  • Cited – Director of Public Prosecutions v Memery QBD 4-Jul-2002
    The Crown Court had concluded that the intoximeter EC/IR was not a validly approved device or if it was that it was unreasonable for the Secretary of State to have approved it since it was a device which detected mouth alcohol, i.e. was liable to . .
    (Times 09-Jul-02, [2002] EWHC Admin 1720, [2003] RTR 18)
  • 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 . .
    (, [2003] EWHC 130 (Admin))
  • 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 . .
    (, [2006] EWHC 32 (Admin), Times 08-Feb-06)
  • Cited – Rose v Director of Public Prosecutions Admn 11-Mar-2010
    The defendant appealed by case stated his conviction of driving with excess alcohol. He said that the device used was not an approved one. He also said that the reading was invaid in including a reading of mouth alcohol. . .
    (, [2010] EWHC 462 (Admin))

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.166814

Edward Draycott v Draycott Talbot, And Others: PC 28 Jan 1718

The entry of the name and titles of persons in a church book, either for marriages or births, cannot be positive evidence of the marriage or birth of any person ; unless the identity of the person named in such entries is fully proved, and strengthened also with circumstances of co-habitation, or the allowance of parties.
References: [1718] EngR 68, (1718) 3 Bro PC 564, (1718) 1 ER 1501
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 21 November 2020; Ref: scu.390552

The Coca-Cola Company and Another v Cengiz Aytacli and others: ChD 30 Jan 2003

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.
References: Times 11-Feb-2003, [2003] EWHC 91 (Ch), Times 20-Mar-2003
Judges: The Honourable Mr Justice Peter Smith
This case cites:

  • Cited – Comet Products UK Ltd v Hawkex Plastics CA 1971
    The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt.
    Held: The cross-examination was likely to cover issues in the action and on that basis . .
    ([1971] 2 QB 67, [1971] 1 All ER 1141)
  • Cited – Cobra Golf Inc and Another v Rata and Others ChD 11-Oct-1996
    An Anton Piller order was wrongfully made where it was used in order to get information to found a later prosecution. The privilege against self incrimination is available under Section 14 of the 1968 Act in contempt proceedings despite the fact . .
    (Times 11-Oct-96, [1998] Ch 109, [1996] FSR 819)
  • Cited – Director of Public Prosecutions for Northern Ireland v Lynch HL 1975
    The House considered the availability of duress as a defence on a charge of aiding and abetting murder. Referring to the basic elements of criminal liability, mens rea and actus reus: ‘Both terms have, however, justified themselves by their . .
    ([1975] AC 653, [1975] 1 All ER 913, , [1975] UKHL 5)
  • Cited – Regina v Hudson and Taylor CACD 17-Mar-1971
    Two teenage girls committed perjury by failing to identify the defendant. When prosecuted they pleaded duress, on the basis that they had been warned by a group, including a man with a reputation for violence, that if they identified the defendant . .
    ([1971] 2 QB 202, , [1971] EWCA Crim 2, [1971] 2 All ER 244, [1971] 2 WLR 1047, (1971) 56 Cr App Rep 1, (1971) 135 JP 403)
  • Cited – Regina v Sharpe 1987
    A member of a gang of robbers sought to establish a defence of duress. The trial judge had directed the jury ‘but in my judgment the defence of duress is not available to an accused who voluntarily exposes and submits himself to illegal compulsion . . .
    ([1987] QB 583)
  • Cited – Coca-Cola Co and Another v Gilbey and Others ChD 10-Oct-1995
    A defendant in an infringement case was ordered to provide information on his associate co-infringers despite his claimed risk of violence. Such a threat was no defence to an action for contempt of court. Duress in civil cases goes as to mitigation . .
    (Times 28-Nov-95, Independent 10-Oct-95)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.178786

Cheltenham and Gloucester Building Society v Grant: CA 23 May 1994

The District Judge is to exercise his discretion informally on suspending possession, and need not apply the rules of evidence rigidly. He may consider that the defendant has sufficent means to support a clearance of the arrears over a reasonable period of time and thus to suspend the rder for possession, without taking direct evidence from him.
References: Ind Summary 23-May-1994, Times 09-May-1994
Statutes: Administration of Justice Act 1970, Administration of Justice Act 1973 8
Jurisdiction: England and Wales

Last Update: 21 November 2020; Ref: scu.79010

Regina v Okolie: CACD 16 Jun 2000

Evidence is always required on matters relating to foreign law, and such evidence given in person unless it was agreed or no issue was taken. Untranslated reports of stolen vehicles prepared by employees of the person who claimed to have been the victim of the theft had been incorrectly relied upon by the judge.
References: Times 16-Jun-2000
This case cites:

  • Cited – Regina v Ofori, Regina v Tackie CA 17-Nov-1993
    Court has power to grant bail or to release a person, pending their appeal despite the existence of a deportation order. . .
    (Times 17-Nov-93, Gazette 08-Dec-93, (1994) 99 Cr App R 223)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.85438

Neill v North Antrim Justices and Another: HL 3 Mar 1993

First degree hearsay evidence is inadmissible when used in an application to show the cause of a witness not attending court. In judicial review proceedings in relation to committal proceedings the test is ‘whether or not a really substantial error leading to demonstrable injustice had occurred.’ and Latham LJ: ‘It seems to us that the touchstone is the touchstone of injustice. The question in each case that has to be asked is whether the procedural defect which has occurred is one which has worked injustice to the defendant.’
References: Gazette 03-Mar-1993, [1993] 97 Cr App R 121
Judges: Lord Mustill, Latham LJ
This case is cited by:

  • Cited – Brizzalari v Regina CACD 19-Feb-2004
    In closing, prosecuting counsel had suggested that during the trial two matters had been mentioned by the defence which had not been mentioned earlier, and that the jury should feel free to draw proper inferences under the 1984 Act from that . .
    (Times 03-Mar-04, [2004] EWCA Crim 310, )

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.84242

Mills and Others v The Queen: PC 1 Mar 1995

A judge’s identification direction need not always warn on the need for witnesses to be convincing. An unsworn statement from a defendant is significantly inferior to oral evidence.
References: Times 01-Mar-1995, [1995] 1 WLR 511
This case is cited by:

  • Cited – Alexander Von Starck v The Queen PC 28-Feb-2000
    (Jamaica) The defendant had fatally stabbed a woman. On arrest, he admitted killing her and that he had the knife which he had used to do so. He gave the police officer a pouch containing a knife, on which blood of the same group as that of the . .
    (Times 16-Mar-00, , , , [2000] UKPC 5, [2000] 1 WLR 1270, (2000) 56 WIR 424)
  • Cited – Anderson v HM Advocate HCJ 1996
    The court considered the effect on a conviction of a failure by defence counsel. After considering the authorities: ‘It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That . .
    (1996 JC 29)
  • Cited – Bally Sheng Balson v The State PC 2-Feb-2005
    PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
    Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
    (, , [2005] UKPC 2)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.83731

KPMG Peat Marwick McLintock v The HLT Group: QBD 18 Mar 1994

The plaintiffs claimed for professional fees, and the defendants counter-claimed alleging negligence. The plaintiffs obtained summary judgment under Order 14 with an order for costs on the standard basis, to be taxed if not agreed. The plaintiffs had instructed solicitors in the City of London to represent them in the litigation and there was an issue as to the amount charged by those solicitors for the work which they had undertaken. The taxing officer had disregarded a survey published by the London Solicitors’ Litigation Association showing the broad average direct hourly cost for City solicitors. He had applied lower rates to taxation of the claimant’s costs on the basis that the survey rates were substantially higher than the rates which he had been in the habit of permitting on taxation.
Held: A survey of solicitors’ charge rates was admissible on taxation of costs. The taxing master should have allowed the actual rates claimed which were, in fact, marginally lower than the survey rates.
Auld J said: ‘The taxing officer’s task, as Robert Goff J put it in R v Wilkinson [1980] 1 All ER 597 at 604, [1980] 1 WLR 396 at 404, is to determine ‘the broad average direct costs of work done’ by a partner and assistant solicitor ‘ in the relevant area at the relevant time’ . . In my view, Master Ellis was wrong to regard as unreasonable, ‘the broad average direct costs’ of City of London solicitors for such a case. His approach was contrary to authority . . If, as I find, it was reasonable for the plaintiffs to have instructed Travers Smith Braithwaite in the litigation, then the firm’s costs on taxation should be taxed by reference to the broad average direct costs for such a firm in that area. The fact that the plaintiffs could have obtained the same services at a much lower price than that average elsewhere is irrelevant (cf R v Dudley Magistrates’ Court, ex p Power City Stores Ltd) . . The taxing officer, when drawing on his own experience, must thus have regard to the general levels of costs actually incurred in the relevant area at the relevant time, not merely those which he has customarily allowed in similar cases. The latter, whilst a useful guide to consistency in the short term, will not reflect the actual general levels of costs unless constantly measured against the reality of what was happening outside the taxing officer’s room during the relevant period . . The process of taxation must reflect, not set, the reasonableness of costs incurred in litigation.’
References: Independent 18-Mar-1994, [1995] 2 All ER 180
Judges: Auld J
This case cites:

  • Cited – Smith v Buller 1875
    The plaintiff in a patent case had failed, and now objected to the amount of costs claimed by the defendant.
    Held: Sir R Malins V-C said: ‘It is of great importance to litigants who are unsuccessful that they should not be oppressed by having . .
    ([1874-80] All ER 425, 27 WR 803, (1875) LR 19 EQ 473)
  • Approved – In Re a Company (No 004081 of 1989) 1995
    Lindsay J considered the calculation of costs of solicitors: ‘if . . the proper guide is that of the average solicitor employed by the average firm in the area concerned, then the Central London Law Societies’ survey, whilst not necessarily a . .
    ([1995] 2 All ER 155)

This case is cited by:

  • Cited – The Law Society of England and Wales, Regina (on The Application of) v The Lord Chancellor Admn 15-Jun-2010
    Costs restriction not made under Act
    The respondent had introduced rules which restricted the levels of costs which might be awarded from central funds to a successful defendant in a criminal trial who had take private representation. The amendment was made under powers in the 1985 . .
    (, [2010] EWHC 1406 (Admin), [2010] WLR (D) 151, [2011] 1 All ER 32, [2010] 5 Costs LR 805, [2011] 1 WLR 234, [2010] ACD 76)
  • Cited – Royal Devon and Exeter NHS Foundation Trust v Acres QBD 22-Mar-2013
    The defendant challenged the use by the claimant of solicitors from Central London in her claim for personal injury. She was a radiographer, and her work involved exposure to dangerous materials, though in this case it arose from use of machinery . .
    (, [2013] EWHC 652 (QB))

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.82833

In Re AB (A Minor) (Medical Issues: Expert Evidence): FD 17 Aug 1994

An expert witness in child abuse cases was to explain all aspects of any controversial theory.
References: Times 17-Aug-1994, (1995) 1FLR 192
This case is cited by:

  • Cited – A and D v B and E FD 13-Jun-2003
    In two separate actions, fathers with parental responsibility sought orders requiring the mothers of their children to ensure they received the MMR vaccine. Each mother objected, having suspicions as to the safety of the treatment. Specific issue . .
    ([2003] EWHC 1376 (Fam), )

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.81685

Fuller v Strum: ChD 20 Dec 2000

Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that the will had been properly executed, but the claimant brought an expert handwriting witness to say that the signature was a forgery.
Held: The court was entitled to give precedence to the lay witnesses. A handwriting expert had a different status to a medical or other witness.
References: Gazette 08-Feb-2001, Times 14-Feb-2001, [2001] WTLR 677
Judges: Mr Jules Sher QC
This case cites:

  • Cited – Barry v Butlin PC 8-Dec-1838
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
    ((1838) 2 Moores PCC 480, , [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, , [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, , [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, , [1838] UKPC 22)

This case is cited by:

  • Appeal from – Fuller v Strum CA 7-Dec-2001
    fuller_strumCA01
    The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
    Held: The onus on the propounder of a will to show that it . .
    ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, , [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
  • Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
    Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
    Held: The appeal had no realistic prospect of success. . .
    (, [2002] EWCA Civ 944)
  • At First Instance – Fuller v Strum CA 16-Feb-2001
    The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
    Held: Leave was granted. The circumstances were extraordinary. The decision was . .
    (, [2001] EWCA Civ 228)
  • At first instance – Fuller v Strum CA 11-Oct-2001
    The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
    Held: Application refused. The issue at the appeal would be not the . .
    (, [2001] EWCA Civ 1551)
  • 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 . .
    (, [2013] EWHC 4079 (Ch))

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.80708

Freemantle v The Queen: PC 7 Jul 1994

The judge’s warning to the jury about its dangers is needed, when the jury were being asked to consider uncorroborated visual identification evidence, unless, and exceptionally, the evidence is of such good quality as to stand without a warning. In this case though, although the direction was defective, the two eye witnesses had known the defendant for several years.
References: Ind Summary 29-Aug-1994, Gazette 12-Oct-1994, Times 07-Jul-1994, [1994] 1 WLR 1437
This case is cited by:

  • Cited – Bertrand Roberts and Roland Roberts v The State PC 15-Jan-2003
    PC (Trinidad and Tobago) The appellants had been convicted of murder and their capital sentences commuted. They now sought to challenge the convictions as to the admission of and directions given on the . .
    (, , [2003] UKPC 1)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.80681

First Class Communications Ltd v Revenue and Customs: UTTC 28 May 2014

CASE MANAGEMENT – whether First-tier Tribunal erred in law in allowing evidence from appeal to be admitted in later appeal by same appellant and directing that appeals be consolidated – no – appeal dismissed
References: [2014] UKUT 244 (TCC)
Links: Bailii
Jurisdiction: England and Wales

Last Update: 03 October 2020; Ref: scu.534508

Cotton v James; 30 Jun 1830

References: (1830) 1 B & Ad 128, [1830] EngR 713, (1830) 1 B & Ad 128, (1830) 109 ER 735
Links: Commonlii
Ratio: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.
This case cites:

  • See Also – Cotton v James, Gent One & C (Commonlii, [1829] EngR 293, (1829) M & M 273, (1829) 173 ER 1157)
    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, & C (Commonlii, [1829] EngR 296, (1829) 3 Car & P 505, (1829) 172 ER 522)
    . .

(This list may be incomplete)
This case is cited by:

  • Cited – Gibbs and others -v- Rea PC (Times 04-Feb-98, Bailii, [1998] UKPC 3, [1998] AC 786)
    (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 &C, v Cotton (, Commonlii, [1831] EngR 127, (1831) 7 Bing 266, (1831) 131 ER 103)
    . .

(This list may be incomplete)

Last Update: 13-Jul-16
Ref: 184695

Steel v Commissioner of the Metropolitan Police; 10 Feb 1993

References: Unreported, 10 February 1993
Coram: Beldam, Dillon, and Roch LJJ
Ratio:The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the plaintiffs, who had served their time afer convictions for robbery which were subsequently quashed. They said the confessions were fabricated. Their appeals were allowed after evidence that officers had improperly procured the conviction of other defendants in similar ways. To succeed the plaintiffs had to prove that prosecutions were unfounded. The officers’ state of mind was essential. Documents were sought to be discovered to provide evidence of similar facts in proof of the misconduct the prosecution. Evidence of the officers’ dishonesty went beyond discrediting him as a witness. They showed similar conduct in other cases. The judge refused specific discovery saying it was not similar fact evidence. The matters relied on were not concerned to rebut a defence of accident or coincidence. They did not show system, and they had no direct probative value in relation to the issue in the present case. They were merely attacks on credit, and the plaintiffs already possessed ample evidence for this purpose. The appeal was allowed. At discovery the court lookd to potential rather than actual admissibility. ‘In my view conduct of this kind is so contrary to the expected standard of behaviour of an investigating police officer that, if proved, it is capable of rendering it more probable that the plaintiffs’ alleged confession was not made and proving that D/Sgt Day had no sufficient belief in the grounds of and an improper motive for the prosecution of the plaintiffs.’ For the purpose of specific discovery, it was enough to show ‘sufficient similarity’ (as opposed to a ‘striking similarity’) between the other conduct and the conduct in the present action. He dismissed the ‘mere propensity’ argument in these terms: ‘I consider the significance of the misconduct alleged went beyond mere propensity. All similar fact evidence relating to misconduct on other occasions could be stigmatised as showing a propensity to behave in that fashion, but the allegations in the present case, if accepted, show that on other occasions D/Sgt Day was prepared to pervert the course of justice in a manner which made it more probable that he did so on the occasion in question.’
This case cites:

  • Cited – Regina -v- Boardman HL ([1975] AC 421, [1974] 3 All ER 887, (1975) 60 Cr App R 165, [1974] 3 WLR 673)
    The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
    Held: In order to be admissible similar facts must bear a . .
  • Cited – Director of Public Prosecutions -v- P HL ([1991] 93 Crim App R 267, [1991] 2 AC 447, [1991] 3 All ER 337, [1991] 3 WLR 161)
    The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
    Held: . .

(This list may be incomplete)
This case is cited by:

  • Cited – O’Brien -v- Chief Constable of the South Wales Police CA (Bailii, [2003] EWCA Civ 1085, Times 22-Aug-03, Gazette 02-Oct-03)
    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 . .
  • Cited – O’Brien -v- Chief Constable of South Wales Police HL (Bailii, [2005] UKHL 26, Times 29-Apr-05, House of Lords, [2005] 2 WLR 1038, [2005] 2 All ER 931, [2005] 2 AC 534)
    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 . .

(This list may be incomplete)

Last Update: 09-Jun-16
Ref: 186051

The ‘Filiatra Legacy’: 1991

References: [1991] 2 Lloyds Reports 337
Coram: Mustill LJ
Ratio 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. ‘

Last Update: 22-Mar-16
Ref: 187676

Webb and Hay v The Queen: 1994

References: (1994) 181 CLR 41, (1994) 122 ALR 41, (1994) 68 ALJR 582
Links: Austlii
Coram: Mason C.J. and McHugh J
(Australia) The test of whether a bias was found in a member of court because of personal links is whether such links give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that there might have been such a bias. As to the test laid down in Gough: ‘In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of `reasonable likelihood’ or `real danger’ of bias tends to emphasise the court’s view of the facts. In that context, the trial judge’s acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident.

We do not think that it is possible to reconcile the decision in Gough with the decisions of this Court. In Gough, the House of Lords specifically rejected the reasonable suspicion test and the cases and judgments which had applied it in favour of a modified version of the reasonable likelihood test. In Watson, faced with the same conflict in the cases between the two tests, this Court preferred the reasonable suspicion or apprehension test. That test has been applied in this Court on no less than eight subsequent occasions. In the light of the decisions of this Court which hold that the reasonable apprehension or suspicion test is the correct test for determining a case of alleged bias against a judge, it is not possible to use the `real danger’ test as the general test for bias without rejecting the authority of those decisions.
‘Moreover, nothing in the two speeches in the House of Lords in Gough contains any new insight that makes us think that we should re-examine a principle and a line of cases to which this Court has consistently adhered for the last eighteen years. On the contrary, there is a strong reason why we should continue to prefer the reasoning in our own cases to that of the House of Lords. In Gough, the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the `lay observer’, the `fair-minded observer’, the `fair-minded, informed lay observer’, `fair-minded people’, the `reasonable or fair-minded observer’, the `parties or the public’, and the `reasonable person’ abound in the decisions of this Court and other courts in this country. They indicate that it is the court’s view of the public’s view, not the court’s own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J. pointed out in Vakauta (1989) 167 C.L.R. at p.585 in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge’s opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge’s view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge’s findings.’
This case cites:

  • Cited – Regina -v- Gough (Robert) HL (Independent 26-May-93, Times 24-May-93, [1993] AC 646, [1993] 2 All ER 727, Bailii, [1993] UKHL 1, [1993] 97 Cr App R 188, [1993] 2 WLR 883)
    The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 183297