Similar fact evidence - malicious prosecution and misfeasance in public office - discretion to refuse to admit if lengthening proceedings or adding to cost or complexity - discretion to be exercised in favour of admission where of strong probative force

O'Brien v Chief Constable of the South Wales Police: CA (Lord Justice Brooke, Lord Justice Mantell and Lord Justice May): 23 July 2003

The claimant sought damages against the defendant for malicious prosecution and misfeasance in public office.

At a case management conference, the judge granted him permission to rely on certain similar fact evidence in support of his claim.

The defendant appealed.

The claimant cross-appealed.

Simon Freeland QC and Jeremy Johnson (instructed by Dolmans, Cardiff) for the defendant; Tim Owen QC and Heather Williams (instructed by Hickman & Rose) for the claimant.

Held, dismissing the appeal and allowing the cross-appeal, that for similar fact evidence in civil proceedings to be admissible it must be logically probative of an issue in the case and an inquiry must be fact sensitive; that once it was decided that evidence was admissible the court, guided by Civil Procedure Rules 32.1(1) and (2), had to ask whether it ought in its discretion to refuse to admit it, mindful of the need to deal with the case justly; that in principle the stronger the probative force, the more willing the court should be not to exclude it, all else being equal; that if, however, such evidence would lengthen proceedings or add to the cost and complexity the court should tend to refuse its admission; that the added complexity was a particularly important consideration if there was to be a jury trial; and that the judge had directed himself correctly.