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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Evidence - From: 1970 To: 1979

This page lists 23 cases, and was prepared on 14 July 2015.

 
In re Bramblevale Ltd [1970] 1 Ch 128
1970


Evidence, Contempt of Court
For reasons of policy or pragmatism, the actual criminal standard of proof may be used in civil proceedings such as contempt of court. Contempt of court is a criminal offence. Accordingly, the burden of proving that the defendant is in contempt rests on the claimant and the facts constituting any contempt must be proved to the criminal standard.
1 Citers



 
 British Oxygen Co Ltd -v- Board of Trade; HL 15-Jul-1970 - [1971] AC 610; [1970] UKHL 4; [1970] 3 All ER 165; [1970] 3 WLR 488

 
 British Railways Board -v- Herrington; HL 16-Feb-1972 - [1972] AC 877; [1972] 2 WLR 537; [1971] 1 All ER 749; [1972] UKHL 1
 
Regina -v- Kilbourne [1973] AC 729
1973
HL
Lord Simon of Glaisdale
Evidence
The House considered what was the general character of relevant evidence. Lord Simon of Glaisdale: "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable."
1 Citers


 
Dunning -v- United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586; [1973] 2 All ER 454
1973
CA
James LJ, Lord Denning MR, Stamp LJ
Evidence, Health Professions
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
1 Citers



 
 Grant -v- Southwestern and County Properties Ltd; ChD 1974 - [1975] Ch 185; [1974] 2 All ER 465
 
Lowery -v- The Queen [1974] AC 85
1974
PC
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."
1 Citers


 
Stafford -v- Director of Public Prosecutions [1974] AC 878; [1973] 3 All ER 762; [1973] 3 WLR 719; (1974) 58 Cr App R 256
1974
HL
Lord Kilbrandon, Viscount Dilhorne
Criminal Practice, Evidence
The House rejected the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their mind and not the effect that the evidence would have had on the mind of the jury. It would be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. Lord Kilbrandon said that the test to be applied by each member of the appellate court is: "Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?" Viscount Dilhorne: "While . . the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]."
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Gallagher -v- BRS [1974] 2 QB 440
1974


Evidence, Contract
Evidence was required to support an assertion of collateral contract.
1 Citers


 
Regina -v- Turner [1975] QB 834; 60 Cr App R 80; (1974) 60 Cr App R 80
1974
CACD
Lawton LJ
Evidence, Criminal Practice
Expert medical evidence based upon observation of a witness can only be admitted if that evidence showed a recognised mental illness. "An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case, if it is just out of the scientific jargon, it may make judgment more difficult."
1 Citers


 
O'Donnell -v- Reichard [1975] VR 916
1975


Evidence

1 Citers


 
Regina -v- Lattimore [1975] 62 Cr App R 53
1975
CACD
Scarman LJ
Evidence
". . . It is also inconceivable that the court would receive inadmissible evidence; for the court must act according to law."
1 Citers



 
 Mood Music Publishing Co -v- De Wolfe Ltd; CA 1976 - [1976] Ch 119

 
 Regina -v- Lee; CACD 1976 - [1976] 62 Cr App R 33
 
Regina -v- Tate [1977] RTR 17
1977
CACD
Lawton LJ
Road Traffic, Evidence, Criminal Practice
At the close of a prosecution case for driving with excess alcohol, the appellant stated that he would not give or call evidence. He then submitted that the jury should be directed to consider only the admissible evidence of the analyst called who stated in cross examination, that two of the experiments had been carried out by a colleague. The results of those experiments were, therefore, hearsay and inadmissible. The trial judge then permitted the second analyst to be called, and the appeal was dismissed. Held: "Since 1911 there have been a number of cases before this court and its predecessor in which the problem has had to be considered. It suffices, we think, to say without going through the cases in detail, that it is now clearly established that the trial judge has a discretion whether he will allow the prosecution to call any more evidence after they have closed their case. The exercise of discretion will not be interfered with by this court unless it has been exercised either wrongly in principle or perversely."
1 Citers


 
McGregor -v- D 1977 SC 330
1977

Lord President Emslie
Scotland, Evidence
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 is asked to consider whether this ground has been established under section 68 of the 1995 Act, the standard of proof which must be applied is that which is required in criminal procedure: section 68(3)(b). The Civil Evidence (Scotland) Act 1988 provides for the abolition of corroboration and the admission of hearsay evidence in civil proceedings. But section 9 of that Act excepts from the definition of "civil proceedings" for the purposes of that Act any hearing by a sheriff of an application under what is now Part II of the Children (Scotland) Act 1995 where the ground of referral was that the child has committed an offence. Nevertheless, the proceedings which Parliament has laid down for the determination of these applications by the sheriff is civil procedure.
Social Work (Scotland) Act 1968
1 Citers


 
Reynolds -v- Phoenix [1978] 2 LIR 22
1978
CA
Lord Denning MR
Evidence
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
1 Citers


 
Chow Yee Wah -v- Choo Ah Pat [1978] 2 MJL 41,
1978
HL
Lord Fraser of Tullybelton
Evidence
When considering “the printed evidence” the Court in Watt referred to a transcript of the evidence only. The disadvantage under which an appellate court labours in weighing evidence is even greater where all it has before it is the judge’s notes of the evidence and has to rely on such an incomplete record.
1 Cites



 
 A & J Inglis -v- Buttery & Co; HL 1978 - (1878) 3 AC 552
 
Sattin -v- National Union Bank Ltd (1978) 122 SJ 367
21 Feb 1978
CA
Lawton LJ
Evidence
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."
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Harmony Shipping Co SA -v- Saudi Europe Line Limited ('The Good Helmsman') [1979] 1 WLR 1380
1979
CA
Lord Denning MR
Litigation Practice, Evidence
One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial. Held: There is no property in an expert witness and any contract purporting to impose an obligation to give evidence for only one side in a dispute would be contrary to public policy. The plaintiff could not prevent the defendant from adducing the evidence of the expert, who could properly be made the subject of a subpoena to appear at trial.
Lord Denning MR said: ""So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting facts from him and from calling him to give evidence or from issuing him with a subpoena . . There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so."
and "Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned . . subject to that qualification it seems to me that an expert witness falls into the same position as a witness to fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts. In this particular case the court is entitled to have before it the documents in question and it is entitled to have the independent opinion of the expert witness on those documents and on those facts – excluding, as I have said, any of the other communications which passed when the witness was being instructed or employed by the other side."
and "The expert witness can be seen beforehand and give a proof on these limited matters I have mentioned and give evidence accordingly."
1 Citers



 
 Waugh -v- British Railways Board; HL 12-Jul-1979 - [1980] AC 521; [1979] UKHL 2; [1979] 3 WLR 150; [1979] 2 All ER 1169
 
Gamlen Chemical Co (UK) Ltd -v- Rochem Ltd [1980] 1 WLR 614; [1980] 1 All ER 1049; [1983] RPC 1
4 Dec 1979
CA
Goff and Templeman LJJ
Company, Legal Professions, Evidence
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".
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