Evidence - 1970- 1979

All matters of law relating to evidence

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 21 cases, and was prepared on 19 May 2014. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
In re Bramblevale Ltd; 1970
British Oxygen Co Ltd -v- Board of Trade; HL 15-Jul-1970
British Railways Board -v- Herrington; HL 16-Feb-1972
Regina -v- Kilbourne; HL 1973
Dunning -v- United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586; [1973] 2 All ER 454
James LJ, Lord Denning MR, Stamp LJ
Evidence, Health Professions Casemap
1 Citers
Mrs D had been treated at hospital, and sought release of her records to establish whether she had any basis for a claim in negligence. The court considered whether an application under section 31 of the 1970 Act for pre-action discovery had been properly made. Given the delay, the court was asked whether a claim was 'likely' to be made. Held. Whether the parties are likely to be parties in subsequent proceedings does not depend on the state of affairs prior to pre-action discovery. If one concentrates solely on things as they stand prior to pre-action discovery then it will often be impossible to say that anyone is likely to be a party to any subsequent proceedings.
Lord Denning MR said: "One of the objects of this section is to enable a plaintiff to find out – before he starts proceedings – whether he has a good cause of action or not". “likely” must be given its more extended and open meaning. A more restricted meaning would defeat the purpose of the statute.
James LJ said: "In order to take advantage of the section, the wording of which is no different from that of s 33(2) of the 1981 Act the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is a reasonable basis for making it. Ill-founded, irresponsible and speculative allegations or allegations based merely on hope, would not provide a reasonable basis for an intended claim in subsequent proceedings."
Stamp LJ dissented, saying that the expert's opinion was that proceedings were unlikely, and disclosure was unlikely to produce anything to justify it.
Administration of Justice Act 1970 31
Lowery -v- The Queen [1974] AC 85
Morris L
Crime, Evidence, Commonwealth

(Victoria) A young girl was sadistically murdered. The two accused, were present and the crime was committed by one or the other, or both. Each brought evidence of the unlikelihood that he could have committed the murder. L emphasised his good character and said that because of fear of K he had been unable to prevent the murder. K said that he had been under the influence of drugs and had been powerless to prevent L from killing the girl. Despite L's objection, K was allowed to call a psychologist as to their respective personalities and, on that evidence, to invite the jury to conclude that it was less probable that K was the killer. They were both convicted. L unsuccessfully appealed to the Supreme Court of Victoria on the ground, inter alia, that the psychologist's evidence ought not to have been admitted. Held: Only in exceptionl circumstances can expert evidence be admissible as to the likelihood of the defendant's veracity. The evidence of the psychologist was relevant in support of K's case to show that his version of the facts was more probable than that put forward by the appellant. Accordingly the Privy Council dismissed the appeal. Evidence is relevant 'if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other'. The Board approved a statement as to the law: "It is … established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged; .. it is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person."
Stafford -v- Director of Public Prosecutions; HL 1974
Gallagher -v- BRS [1974] 2 QB 440

Evidence, Contract
1 Citers
Evidence was required to support an assertion of collateral contract.
Regina -v- Turner; CACD 1974
O’Donnell -v- Reichard [1975] VR 916

Evidence Casemap

Regina -v- Lattimore [1975] 62 Cr App R 53
Scarman LJ
Evidence Casemap
1 Citers
". . . It is also inconceivable that the court would receive inadmissible evidence; for the court must act according to law."
Mood Music Publishing Co -v- De Wolfe Ltd [1976] Ch 119
Lord Denning MR,Orr Browne LJJ
Evidence Casemap
1 Cites
1 Citers
The plaintiffs alleged breach of copyright case involving music and sought to have admitted in evidence similar fact evidence showing that the defendants had published music resembling material protected by copyright in the past. The defendant apealed. Held: Lord Denning: "The admissibility of evidence as to 'similar facts' has been much considered in the criminal law. Some of them have reached the highest tribunal, the latest of them being Reg v Boardman [1975] AC 421. The criminal courts have been very careful not to admit such 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. "
Regina -v- Lee [1976] 62 Cr App R 33
Evidence Casemap
1 Citers
A defendant charged with burglary of a house should have been allowed to introduce into evidence the bad character of others, not called as witnesses, who had access to the house. The relevance of this evidence is that it goes to disposition.
Regina -v- Tate; CACD 1977
McGregor -v- D; 1977
Reynolds -v- Phoenix [1978] 2 LIR 22
Lord Denning MR
Evidence Casemap
1 Citers
The court discussed the effect of the 1974 Act on the admission of a spent conviction which was relevant or potentially relevant (depending on the trial judge's findings as to "materiality" for insurance purposes) to a liability issue in the case: "The man has to be treated as if he had never been convicted at all .... If he is asked whether he has been convicted he need not answer. He can say "No"."
Rehabilitation of Offenders Act 1974
Chow Yee Wah -v- Choo Ah Pat; HL 1978
Sattin -v- National Union Bank Ltd (1978) 122 SJ 367
21 Feb 1978
Lawton LJ

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."
Harmony Shipping Co SA -v- Saudi Europe Line Limited ('The Good Helmsman'); CA 1979
Waugh -v- British Railways Board; HL 12-Jul-1979
Gamlen Chemical Co (UK) Ltd -v- Rochem Ltd; CA 04-Dec-1979