Evidence - 1997

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This page lists 14 cases, and was prepared on 28 October 2012.

Wisniewski -v- Central Manchester Health Authority [1997] PIQR 324; [1998] Lloyd’s Rep Med 223
1997 CA Brooke LJ	Professional Negligence, Evidence	Casemap 1 Cites
	The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: "(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."

Director of Public Prosecutions -v- McKeown and Jones [1997] UKHL 4; [1997] 1 All ER 737; [1997] 1 WLR 295; [1997] 2 Cr App Rep 155; [1997] Crim LR 522
20 Feb 1997 HL Lord Goff of Chieveley, Lord Mustill, Lord Steyn, Lord Hoffmann, Lord Clyde	Evidence, Road Traffic	Casemap 1 Cites 1 Citers
	A driver was arrested for driving with excess alcohol. At the police station, he was to be tested with the Lion Intoximeter. The officer tested the machine and it calibrated correctly. This was at about a quarter after midnight; the sergeant's watch said 00.13 am, but the time display on the machine read 23:00. Part of the discrepancy was explained by the fact that, as the print-out made plain, the machine was set to GMT. But there was no explanation for the balance of the difference. Held: The failure of an internal computer clock was not a sufficient indication of a computer malfunction to make a reading from a breath analyzing machine inadmissible in evidence. The rule in section 16 is a specialist exception to the rule against admission of hearsay.
	Police and Criminal Evidence Act 1984 69 - Road Traffic Act 1988 7(1) - Road Traffic Offenders Act 1988 16 - Magistrats' Court Act 1980 97(1)
	Link[s] omitted

Secretary of State for Trade and Industry -v- John Kevin Ashcroft; Barry Copp-Barton; Colin Graham Fynlo Corlett and Victoria Lilian Gay Sutcliffe [1997] EWCA Civ 1101
26 Feb 1997 CA	Company, Evidence, Jury
	A liquidator's affidavit was admissible in company director disqualification action, even though it contained hearsay evidence.
	Company Directors Disqualification Act 1986
	[ Bailii ]

Malhotra -v- Dhawan [1997] EWCA Civ 1096; [1997] 8 Med LR 319
26 Feb 1997 CA Lord Justice Saville Lord Justice Morritt Sir Patrick Russell	Evidence, Company, Costs	Casemap 1 Cites 1 Citers
	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 evidence, and dismissed the appeal. The case was one for an account, and therefore a payment in was not appropriate, and the court was correct to allow for the Calderbank letter. The judge, in view of his findings was free to make the order for payment of indemnity costs. "First if it is found that the destruction of the evidence was carried out deliberately so as to hinder the proof of the plaintiffs claim then such finding will obviously reflect on the credibility of the destroyer. In such circumstances it would enable the court to disregard the evidence of the destroyer in the application of the presumption. That is not this case. Second, if the court has difficulty in deciding which party's evidence to accept then it would be legitimate to resolve that doubt by the application of the presumption. But, thirdly, if the judge forms a clear view, having borne in mind all the difficulties which may arise from the unavailability of material documents, as to which side is telling the truth I do not accept that the application of the presumption can require the judge to accept evidence he does not believe or to reject evidence he finds to be truthful."
	Link[s] omitted

Mahon and Another -v- Rahn and Others (1) [1998] QB 424
12 Jun 1997 CA Otton LJ, Staughton LJ	Defamation, Evidence	Casemap 1 Citers
	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.

B (a Minor) [1997] EWCA Civ 1916
20 Jun 1997 CA	Children, Evidence
	Link[s] omitted

Williams -v- Attridge Solicitors (a Firm) [1997] EWCA Civ 2049
8 Jul 1997 CA Brooke LJ	Evidence, Litigation Practice	Casemap 1 Cites 1 Citers
	The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal against a summary strike out. Held: The Ladd v Marshall criteria need not be satisfied in an application to admit fresh evidence where a case had been struck out pursuant to Order 18, rule 19.
	Link[s] omitted

John Bairstow; Martin Alan Marcus; David Michael Hersey and Allan William Porter -v- Queens Moat Houses Plc [1997] EWCA Civ 2168; [1997] EWCA Civ 2290; [1997] EWCA Civ 2267; [1998] 1 All ER 343
23 Jul 1997 CA	Litigation Practice, Evidence	Casemap 1 Citers
	New rules on evidence procedures are not retrospective. Notices under the 1968 Act should have been served to be allowed to admit hearsay evidence.
	Civil Evidence Act 1995 - Civil Evidence Act 1968
	Link[s] omitted

Bolitho -v- City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232; [1997] 4 All ER 771; [1997] 3 WLR 1151
24 Jul 1997 HL Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann, Lord Clyde	Professional Negligence, Evidence	Casemap 1 Citers
	The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. Held: In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence. What other professionals do is persuasive evidence as to what is acceptable, but a consistent body of expert medical opinion may still be ignored by the judge, if he can be sure that no logical basis for the opinion has been shown to the court: "a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action."
	Link[s] omitted

Herbie Frogg Limited -v- Lee Barnett Needleman (a Firm) (2) [1997] EWCA Civ 2260
31 Jul 1997 CA	Evidence
	Link[s] omitted

Regina -v- Isleworth Crown Court ex parte Kevin Marland [1997] EWHC Admin 931
28 Oct 1997 Admn Kennedy LJ and Smith J	Evidence	Casemap 1 Citers
	A previous conviction of the defendant for a drugs related offence was admissible on a civil application for the forfeiture of cash said to represent the proceeds of drug trafficking under the section 43(1). The court observed that the circumstances in which similar fact evidence would be admitted in a criminal trial were closely circumscribed for the protection of the accused. In civil cases, on the other hand, the rules were less circumscribed because the underlying intention was not to protect one side but to be fair to both sides.
	Drug Trafficking Act 1994 43(1)
	Link[s] omitted

Azhar Hussain and Sajid Mahmood -v- Director of Pubic Prosecutions [1997] EWHC Admin 1115
11 Dec 1997 Admn	Evidence
	Link[s] omitted

Ali Shipping Corporation -v- Shipyard Trogir [1997] EWCA Civ 3054
19 Dec 1997 CA	Evidence, Arbitration
	Link[s] omitted

Regina -v- Elliott [1997] EWCA Crim 3419
22 Dec 1997 CACD Lord Justice Potter, Mr Justice Holland, And The Recorder Of Liverpool (His Honour Judge Clarke)	Evidence, Crime	Casemap 1 Cites
	The defendant appealed convictions for wounding with intent, and murder. The issue was one of identification, and he criticised the absence of a full Turnbull direction. Held: A Turnbull warning should warn the jury of the dangers inherent in identification evidence, the reason for the danger, and the fact that one or more honest witnesses may still be wrong. In this case, the prosecution suggested it was recognition rather than identification evidence, and a full warning was not required. The judge should nevertheless have given the direction. "Where issues of identification arise, which depend so often on an accumulation of detailed points, it is usually a desirable approach for the Judge, at some stage, to put before the jury a coherent list of the points for the defence. If the exercise is conducted solely on the basis that the individual points to be made will be dealt with in the course of recounting the evidence, it is perilously easy for individual points to be overlooked, or for an apparently "weighted" approach to develop as between prosecution and defence." He had also been unclear as to the burden of proof on the alibi question. The appeal was allowed.
	Link[s] omitted