Excluding Evidence
In Chapter 2 we considered the various forms that evidence could take (real, oral, documentary and circumstantial). In this section we will discuss when and how such evidence is ‘admissible’ or can be ‘excluded’.
It is often the oral testimony and documentary evidence that present the most admissibility difficulties in terms of ensuring the correct balance between relevance and fair admission of the evidence at the trial.The basic principle of most court hearings is that all relevant evidence is admissible unless it breaches (1) a specific rule of law contained in legislation or (2) a common law exclusionary rule of evidence or (3) the judge exercises his/her discretion to exclude the evidence under the principles of fairness. In civil proceedings the discretion is found under CPR Part 32.1 (2) and this rule can be used to exclude different types of evidence.
6.2.1 Illegally or Improperly Obtained Evidence
There is not a general rule of exclusion in civil proceedings for improperly or illegally obtained evidence or evidence that has been tainted in some way. However, the civil procedure rules do contain mechanisms to make it more difficult for such evidence to be admitted. For example, under CPR Part 31.20 a privileged document which has been ‘inadvertently’ produced for inspection may not be relied upon by the opposing party unless the judge permits it. The court can of course use its discretion under CPR Part 32.1(2) to exclude any evidence including improperly obtained evidence.
The civil procedure rules promote transparency and obligations of disclosure of evidence by a party. This includes evidence that may be adverse to their own case or that of the other party. In Jones v University of Warwick [2003] EWCA Civ 151 the court had to consider whether to admit covertly recorded video evidence of a claimant in personal injury proceedings.
This evidence had been obtained without her knowledge. It was argued by the defendants that the evidence was relevant to show that the claimant did not have a continuing significant disability to her right hand as a result of being injured during an accident, despite claims made in her evidence. The claimant asked the court to exercise its discretion to exclude the evidence. Whilst accepting that privacy issues under Article 8 of the European Convention on Human Rights 1950 might be engaged, the court also had to balance this with the court’s overriding duty under CPR Part 1 to deal with cases justly. The court accepted that whilst the conduct of the insurers in commissioning the secret video footage was improper and unjustified, the conduct was not so outrageous that it would impede the progress of the trial and the proper administration of justice. The court remarked in its judgment that ',[e]xcluding the evidence is not, moreover, the only weapon in the court’s armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the order for costs which it makes” [30]. As such, civil proceedings arguably take a more inclusive approach to unfairly obtained evidence than criminal proceedings.6.2.2 Character and Similar Fact Evidence
A party may wish to use evidence of the bad character of an opponent such as the fact that they have previous convictions or there is evidence of other misconduct. A party may also want to use as evidence the fact that a defendant has behaved in a similar way before as this might suggest a tendency towards repeated misconduct or negligence (known as ‘similar fact evidence’). However, because of its prejudicial nature the opposing party would want the judge to exclude such evidence.
Unlike the criminal procedure, there is not a formalised structure for the exclusion of such evidence in the civil courts and the court will instead use its wide discretion under CPR Part 32.1 to consider whether such evidence is relevant to the proceedings.
The case of O'Brien v Chief Constable of South Wales Police [2005] UKHL 26 was the first case to consider the use of character evidence within civil proceedings and examined the existing criminal framework for some guidance. The House of Lords decided that whilst the use of similar fact evidence had been a contentious issue in criminal proceedings, it could be important and decisive to issues and therefore the principle of relevance would determine its admissibility. Ultimately it will be a matter of discretion for the trial judge to decide on admissibility.The case law that has evolved in the area of bad character in civil proceedings has therefore largely been in relation to similar fact evidence. For example, in Mitchell v News Group Newspapers [2014] EWHC 3590 (QB) the court allowed ‘similar fact evidence' that tended to show that the MP Andrew Mitchell had previously acted in a rude and confrontational manner towards police officers in earlier incidents. It was argued that this gave some weight to the question of whether he had behaved in a similar way towards police officers as alleged in a news story by the News Group Newspapers Ltd that was the subject of the civil proceedings. In Alleyne v Commissioner of Police for the Metropolis [2012] EWHC 4406 (QB) similar fact evidence of previous allegations of police misconduct by two police officers was admitted on the basis that these were probative to the question of whether the same police officers had injured the claimant during a search of his premises. In Laughton v Shalaby [2014] EWCA Civ 1450, the court was asked to consider whether evidence of complaints of incompetence made against a defendant surgeon could be admissible under the same O'Brien principle. The court held that complaints are not probative because they have not been proven and cannot therefore be said to amount to similar fact evidence.
The Civil Evidence Act 1968 also provides a route for the defendant's criminal conviction to be used as evidence in civil proceedings. Under s. 11 such convictions can be used to prove that the defendant committed the offence. This may be important evidence, for example, in a civil trial for personal injuries arising from a road traffic accident. The defendant might have already been convicted in the criminal court for a road traffic offence relating to the accident, e.g. speeding. The claimant can then use this conviction as proof that the defendant was indeed speeding when producing evidence in the civil trial. A similar provision exists to use previous criminal convictions in defamation cases (see s. 13). Findings of adultery or paternity in the family courts can also be used in civil proceedings (see s. 12 of the 1968 Act).
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