Peter Fraser Vernon v Katherine Sarah Bosley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOFFMANN,LORD JUSTICE FARQUHARSON,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 16 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0316-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 1994 |
[1994] EWCA Civ J0316-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRO FORMA
(Mr. Justice Sedley)
Before: Lord Justice Ralph Gibson Lord Justice Farquharson Lord Justice Hoffmann
MR. P. O'BRIEN QC and MR. D. PEARCE-HIGGINS (Instructed by Grossman Hermer Seligman, Cardiff) appeared on behalf of the Appellant
MR. D. BLUNT QC and MR. J. MARKS (Instructed by Osborne Clarke, Bristol) appeared on behalf of the Respondent
( )
Wednesday, 16 March 1994
This is an interlocutory appeal by leave of the judge from a ruling by Sedley J. on the admissibility of evidence in the course of a trial. The action is for what used to be called nervous shock but could more accurately be described as damage caused by mental trauma. The traumatic event was the tragic drowning of the plaintiff's two daughters on 13th August 1982 when the car in which they were being driven by the defendant left the road and plunged into a river. The plaintiff and his wife were called to the scene and witnessed an unsuccessful attempt to rescue their children.
Negligence is admitted and the only issue in the action is the amount of the damages. The plaintiff claims that the psychiatric damage caused by the accident resulted in, among other things, the collapse of his business and the breakdown of his marriage. The business went into receivership in January 1986. Since then he has devoted himself entirely to prosecuting this action. He is claiming special damages of about £4.5 million for loss of earnings and profits. His wife left him in September 1992. For this he claims both general damages and special damages for the loss of services which she provided.
The case for the defence is that the accident, tragic as it was, had no effect upon the plaintiff's personality. He had suffered all his life from psychiatric disorder and continued to do so. The failure of the business was due to economic and other causes. The subsequent worsening of his personality disorder which led to the breakdown of his marriage was caused by his losing his business and afterwards becoming obsessed with this litigation.
The trial has so far lasted some seven weeks. The cross-examination of the plaintiff continued on and off for over five weeks, other witnesses being interposed in the course of his evidence. Most of this cross-examination concerned his claim for the failure of the business. But Mr O'Brien also elicited an admission that between 1983 and 1987 the plaintiff had had an affair with another woman. This was a period during which the wife gave birth to three children. So far as the plaintiff knew, his wife was still unaware of this relationship. He said that he had entered into the relationship because the other woman was more supportive and understanding than his wife.
The wife is about to give evidence. She has provided a witness statement which supports her husband's claim. She has petitioned for divorce and a decree nisi has been pronounced. But her claim for ancillary relief remains outstanding. Her prospects of obtaining any substantial financial settlement are entirely dependent on the success of the plaintiff's claim. He is on legal aid.
Mr O'Brien wants to put to the wife her husband's infidelity and cross-examine her about whether she knew about it and, if not, whether it would have affected the marriage. He says that this is relevant upon a number of grounds. If she knew, it may have been a cause of the breakdown of the marriage. If she did not know, it may show that the marriage was in any event a fragile one, dependent on the success of the husband's deception. Furthermore, the knowledge of her husband's adultery may affect her view of his character and her evidence about the causes of the behaviour which led to the breakdown of the marriage. For example, she says that the trauma had caused her husband to lose interest in sex. She might wish to revise this opinion if she knew he was having sex with someone else. It might cause her to reassess his character and make her evidence generally less supportive, even if this would be to her financial disadvantage.
Mr Blunt for the wife asked for a ruling that such cross-examination should not be allowed. He argued that the wife's answers would be inadmissible on grounds of irrelevance or that even if they were admissible, the judge had a discretion to exclude the questioning on the ground that any relevance the answers might have would be outweighed by the distress which the questions would cause to the wife, to future relationship with the husband and thereby indirectly to the children.
Mr O'Brien submits that in a civil case a judge has no discretion to exclude admissible evidence. Put like that, I would agree. I think that Otton J. was quite right to give such a ruling in Bradford City Council v. K. (Minors) [1990] Fam. 140. But the argument is often a barren one, because the decision as to whether evidence is admissible can involve a balancing of interests indistinguishable from the exercise of a discretion. The cardinal principle of admissibility is relevance. But relevance is always a matter of degree. How relevant must evidence be in order to be admissible? Ordinarily, the threshold is very low. It is an important aspect of an adversary system of justice that a party should so far as possible be allowed to decide how to present his case. If he or his counsel thinks that an item of evidence or a line of cross-examination may be relevant, the court is generally very reluctant to shut it out. He should not be left with a feeling that he might have won if only he had been allowed to adduce evidence or ask questions which the judge refused to hear. Nor should he be unnecessarily controlled or directed in the way he conducts his presentation of evidence or cross-examination. Particularly if he is represented by a professional advocate on whose sense of responsibility the court can rely. The judgment of Denning L.J. in Jones v. National Coal Board [1957] 2 Q.B. 55 is a classic statement of the case for judicial abstention.
But there are limits to the extent to which the parties can be allowed free rein. A party's right to choose how to present his case may have to be balanced against other legitimate public or private interests. For example, both the opposing party and the general public have an interest in keeping down the length and cost of litigation. On this ground, the judge will sometimes rule inadmissible the exploration of side-issues which, though possibly having some potential relevance, do not appear sufficiently relevant to justify the time and expense which would be required to investigate them. As Rolfe B. said in A.-G. v. Hitchcock (1847) 1 Ex. 91:
"The laws of evidence on this subject, as to that ought and what ought not to be received, must be considered as founded on a sort of comparative consideration of the time to be occupied in examinations of this nature and the time which it is practical to bestow on them".
Thus similar fact evidence is excluded in civil cases when, weighed against the time and expense and which would be involved in its proper investigation and the disadvantage at which having to deal with such evidence would put the opposing party, its relevance appears insufficient to justify the undertaking. Or as Lord Denning M.R. said in Mood Music Publishing Co. Ltd v. De Wolfe Ltd [1976] Ch. 119::
"In a civil case 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 entitled to deal with it…"
Similar fact evidence is sometimes regarded as subject to a special exclusionary rule, but at least in civil cases I think it can easily be accommodated in the wider general principle by which the judge decides whether evidence is sufficiently relevant to be admissible. It shows that the degree of relevance needed for admissibility is not some fixed point on a scale, but will vary according to the nature of the evidence and in particular the inconvenience, expense, delay or oppression which would attend its reception. Similar fact evidence is an obvious case in which the prospect of having to investigate collateral issues makes it impossible for the court to take the relaxed attitude to relevance which it would ordinarily prefer. But there are other situations which may require a similar balancing of relevance against other interests. For example, having to answer a question may involve a witness in breaking a confidence imposed by his religion, profession or conscience. It is clear that the court will respect such obligations of confidence and not require them to be broken unless the evidence is necessary to enable justice to be done: see A.-G. v. Mulholland [1963] 2 Q.B. 477. This case was of course concerned not so much with the admissibility of the evidence as the compellability of the witness to answer, but I think it also illustrates the broad principle that deciding the limits of the right of the litigant to adduce evidence requires weighing the degree of relevance of that evidence against competing interests.
It therefore seems to me that although a judge has no discretion to exclude admissible evidence, his ruling on admissibility may involve a balancing of the degree of relevance of the evidence against other considerations which is in practice indistinguishable from the...
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