Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence

Date01 May 2006
AuthorRoderick Munday
Published date01 May 2006
Subject MatterArticle
Case management,
similar fact evidence in
civil cases, and a
divided law of evidence
By Roderick Munday
Fellow of Peterhouse, Cambridge
Abstract It is widely assumed that, by virtue of their acquired professional skills,
judges are markedly better than jurors at performing complex adjudicative
tasks and that they are less susceptible to the cognitive distortions that affect
lay minds when handling emotive or potentially prejudicial information.
Taking its cue from the House of Lords recent decision in O’Brien concerning the
admissibility of ‘similar fact evidence’ in civil proceedings, this article reviews
existing experimental data which point strongly in the opposite direction. The
advent of case management, in both civil and criminal cases, looks set to
encourage a system in which the quantity and nature of evidence placed before
the tribunal may be influenced by the tribunal’s composition. This development
is likely to reinforce the assumption of judicial superiority evident in existing
procedural rules. Yet if judges share many, if not most, of the cognitive foibles of
non-professional fact-finders, it is questionable—in the absence of further
study—whether a divided law of evidence would be desirable or justified.
Absent any authority, we take the view that the direction sought by
[counsel] would require the jury to indulge in the kind of ‘mental
gymnastics’ which even a judge might find difficult to perform.
RvRobinson [2005] EWCA Crim 3233 at [54], per Hooper LJ.
1. The admissibility of civil similar fact evidence
rior to the entry into force of the Criminal Justice Act 2003, the purpose
of the once highly restrictive similar fact evidence rules in criminal cases
was to protect an accused against the risk of wrongful conviction on the
basis of inherently prejudicial evidence. In their day, these rules were thought
to embody the very essence of fair trial at common law. In civil cases, too, a
claimant may be allowed to adduce evidence of his opponent’s ‘misconduct’ on
other occasions in order to help establish that what he is claiming is more likely
than not to have occurred. To take a well-known example, in Hales vKerr1a client,
who had contracted ringworm, sued his barber in negligence. The barber had
staunched the flow of blood from a razor-cut with a towel and a powder puff,
either of which may have been contaminated. As part of his case, the claimant was
permitted to call two witnesses who had suffered similar experiences at this
particular barber’s shop. Such evidence, it was said, gave rise to a ‘legitimate infer-
ence’ that the barber’s instruments were not kept clean. This circumstance, in
turn, was strongly suggestive of negligence.2
Civil courts may admit evidence of extraneous misconduct in innumerable other
situations as circumstantial evidence logically probative of a fact in issue. Tradi-
tionally, they have operated a less rigorous test of admissibility than their
criminal counterparts. Indeed, as Lord Denning MR explained in a celebrated
passage in his judgment in Mood Music Publishing Co. Ltd vde Wolfe Publishing Ltd:
The criminal courts have been very careful not to admit [similar fact]
evidence unless its probative value is so strong that it should be
received in the interests of justice; and its admission will not operate
unfairly to the accused. In civil cases the courts have followed a
similar line but have not been so chary of admitting it. In civil cases
the courts will admit evidence of similar facts if it is logically
probative, that is, if it is logically relevant in determining the matter
which is in issue; provided that it is not oppressive or unfair to the
other side; and also that the other side has fair notice of it and is able
to deal with it.3
Although a court, when considering whether or not to admit such evidence,
would follow a broadly similar balancing process to that which used to be
employed in criminal courts prior to the 2003 Act when deciding whether to
admit ‘similar fact evidence’,4the standard of admissibility tended to be lower. Of
course, the court would not think in terms of prejudice to the defendant, but in
82 E & P
2 Again, in Sattin vNational Union Bank Ltd (1978) 122 SJ 367, where S sought damages following the
defendant’s bank’s loss of a diamond he had deposited as security for an overdraft, the Court of
Appeal allowed evidence to be admitted concerning another customer whose jewellery had also
been lost when deposited with that bank.
4 In criminal cases this process was set out in Lord Mackay of Clashfern’s speech in DPP vP[1991] 2
AC 447.

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