When can similar fact evidence be relied upon?

A recent successful application by Burges Salmon’s dispute resolution team highlights factors considered by the English Courts when considering whether to allow similar fact evidence

31 January 2022

Burges Salmon’s dispute resolution team, working with Narinder Jhittay of Maitland Chambers, has succeeded in an application to exclude from consideration 'similar fact' evidence in defending a breach of contract and misrepresentation claim concerning the performance of robotic farming machinery purchased by the Claimant (Peter Sharp & Son (a firm) v GEA Farm Technologies (UK) Limited). The claim is denied in its entirety by the Defendant on the basis that the matters alleged by the Claimant were caused by other factors and are not attributable to the Defendant or to the machinery supplied by it.

What question was put to the Court?

The Claimant had sought to rely on alleged 'similar complaints' brought by other purchasers, arguing that such evidence was highly relevant, reasonable, and proportionate. The Defendant sought an order to exclude the sections of the Particulars of Claim which referred to that evidence.

The Court’s powers

The Court has wide ranging discretionary powers under the ‘Civil Procedure Rules’ (CPR) to exclude certain issues from consideration in a case.  These include a general case management power to enable the Court to manage cases proportionately and justly, in accordance with the requirements of the ‘overriding objective’.  In addition, CPR PD 51U  requires orders for parties to provide ‘Extended’ disclosure of documents (i.e. the widest ranging form of order) to be made only where it is reasonable and proportionate to do so.  Similarly, CPR 32.1 gives the Court power to control evidence (including by excluding evidence) by limiting the issues on which evidence is required; the nature of such evidence; and the way in which it is to be placed before the Court. 

How is the admissibility of similar fact evidence decided?

Case law has established a two stage test which governs the admissibility of similar fact evidence:

(i) Is the proposed evidence potentially probative of one or more issues in the current litigation? If it is, it will be legally admissible. 
(ii) If it is legally admissible, are there good grounds why a court should decline to admit it in the exercise of its case management powers?
 
Factors to be taken into account by a Court exercising its discretion will include:

  • Whether the evidence may distort the trial and distract attention by focussing on collateral issues;
  • The potential probative value of the evidence, weighed against its potential for causing unfair prejudice; and
  • Consideration of the burden which admission of the evidence would lay on the resisting party. 

The Defendant’s application

The Defendant argued that in principle the evidence referred to by the Claimant was not of relevant probative value (since it did not account for the particular circumstances on the Claimant’s farm, or that it would concern machinery which had been installed and used by other parties). 

The Defendant further argued that in practice, if the similar fact evidence was permitted, this would:

  • Distract attention by focussing on issues collateral to the main case;
  • Cause unfair prejudice, since the Defendant would need to address each 'similar complaint' within the limits of a 10 day trial;
  • Impose a significant (and costly) burden on the Defendant (for example, in dealing with the increased level of disclosure required); and
  • Would be unconducive to resolving the proceedings proportionately and expeditiously. 

The Claimant’s position

The Claimant argued that the evidence was highly relevant, reasonable, and proportionate. It submitted that showing that similar complaints had been made was, of itself, probative, with no need to have a trial to decide whether such complaints were well founded. 

The Court’s decision

The Court decided that any complaints which had been made by other purchasers in relation to the same type of machinery were not relevant to evidencing whether the issues and losses alleged by the Claimant were attributable to the Defendant, or to the many other factors relied on by the Defendant in defence of the claim. 

The Court also said that, even if such evidence was potentially relevant, it would have declined to admit any similar fact evidence as a matter of case management in any event because:

  • Excluding the evidence would not result in a wrong outcome being reached. Justice did not require the evidence to be admitted and it had, at best, limited probative force;
  • There would be little or no practical utility in adding more evidence to the evidence already being produced, especially where that additional evidence would be likely to obstruct and distract rather than expedite the fact finding process;
  • Producing the proposed evidence would extend the trial time and increase cost; and
  • Even narrowing the scope of similar fact evidence (which had been proposed by the Claimant in response to the Defendant’s application) would still result in a need for the Defendant to address it.

Summary

This decision is a useful illustration of the Court’s wide ranging powers to manage evidence, and some of the factors which it will consider when exercising those powers.  Claimants cannot automatically rely on so called ‘similar facts’ to support allegations that the experiences of third parties amount to probative evidence in other cases.  Defendants who are facing claims which rely on similar fact allegations have a range of tools available to them to help limit or exclude evidence and to manage the impact (in terms of both cost and management time) of litigation.

Burges Salmon’s 'superbly professional' dispute resolution team is ranked Tier 1 in Legal 500, noted as being 'outstandingly good at devising legal strategies' to achieve clients' commercial objectives in corporate and commercial disputes, procurement challenges and judicial review proceedings.

This article was written by Sian Edmunds and Caroline Brown of the dispute resolution team.

 

 

Key contact

Sian Edmunds

Sian Edmunds Partner

  • Food and Farming
  • Food and Drink
  • Partnership Disputes
  • Private Wealth Disputes

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