The recent case of Laughton v Shalaby  EWCA Civ 1450 gives a reminder of the test for admissibility of bad character evidence in civil cases but also an opportunity to look at what types of evidence on credibility or bad character would be admissible and indeed useful in personal injury claims.
The possible bad character evidence admissible in civil cases was clarified by the House of Lords in O’Brien v Chief Constable of South Wales Police  2 AC 534. In this case it was stated that similar fact evidence would be admissible if it was potentially probative of an issue in the action, but also stressing that there is a second stage where a judge can use their discretion to exclude otherwise admissible evidence or limit cross examination. Phipson on Evidence (17th edition) summarises the current position at §22-07, describing a civil rule in which courts are required to balance “probative value to the promoting party against oppression and unfairness to the other side, rather than probative value against prejudicial effect”.
The Civil Procedure Rules specifically provide for attacking the credibility of witnesses who propose to give hearsay evidence in r33.5 but make no further provision for attacks on a witness’s credibility if they are to be a live witness. Under r32.1 the court has the power to control the evidence, to exclude evidence that would be admissible and to limit cross-examination. Standard disclosure under r31.6 specifically provides for disclosure of documents that either adversely affect their own case or another party’s case or indeed support another party’s case, which would include any documents casting doubt on the credibility of a party. The 2014 edition of the White Book specifically notes in §31.6.5 that “disclosure of documents and admissibility of evidence are two distinct concepts” noting that “potentially inadmissible documents should still be disclosed”.
Laughton v Shalaby
Laughton v Shalaby was a clinical negligence case in which the claimant brought a claim against an orthopaedic surgeon who carried out her left hip replacement. A year after her hip replacement surgery the claimant underwent a second procedure on her left hip due to ongoing pain. During this second surgery a muscle, which the defendant should have re-attached to the bone at the end of the initial hip replacement surgery, was found to not be attached to the correct bone but instead attached to the adjoining muscle. It was the claimant’s case that the defendant was negligent in not re-attaching the muscle to the correct bone at the end of the surgery.
The defendant’s position was that he would have re-attached the muscle, although he could not remember this particular operation having carried out around 3,000 similar operations, and that tearing away of the muscle (an avulsion) was a recognised but rare occurrence after hip replacement surgery. He relied on expert evidence to that extent which was preferred by the trial judge.
The claimant appealed and argued that the judge failed to take into account a number of extraneous factors regarding the defendant’s character and balance those against the rarity of an avulsion occurring without negligence. The Court of Appeal broke down the extraneous factors into three categories: those regarding the lack of probity or honesty of the defendant, those showing the stress the defendant and evidence of his incompetence in other cases.
In relation to the first category it was noted by Lord Justice Longmore that if there was “extraneous evidence of lock of probity that would be relevant to the credibility of any witness”. But went on to note that the credibility of the defendant in this case was not really in issue given that he could not remember the particular operation.
When considering the second category of factors it was specifically noted that the “fact that a doctor is under stress does not of itself mean that he is more likely than not to have been negligent on a particular occasion”.
It was the third category of factors that was considered more problematic. It was argued by the claimant that s103(1)(a) of the Criminal Justice Act 2003 should apply to civil proceedings and put forward the proposition that ‘evidence of systematic failure of various types of incompetence is admissible in professional negligence cases as enabling a judge to make inferences of negligence in a particular case’. This was rejected by the Court of Appeal, which stated “evidence of extraneous matters should be confined to cases of similar fact for the traditional reason that, unless the evidence is similar fact evidence, it is not probative of the issue to be determined”. The second discretionary stage as set down in O’Brien was also noted, particularly where the evidence is likely to open up complex collateral issues.
The evidence of complaints against the defendant was noted to be correctly dealt with by the trial judge in determining that it was not probative. A doctor who had investigated the defendant’s treatment of a number of patients, including the claimant, on behalf of the GMC noted that the defendant’s care on occasion fell seriously below the standard expected of a reasonably competent orthopaedic surgeon. The Court of Appeal found that the comment in itself could not prove that he was negligent during the claimant’s operation. The complaints about knee, foot and wrist operations were deemed too far removed to constitute similar fact evidence and the only hip replacement complaint was about insufficient discussion with the patient. A decision of the Fitness to Practice Panel, which suspended the defendant’s registration, was also adduced on appeal but was noted not to disclose similar fact evidence relevant to whether the defendant was negligent in the course of the claimant’s operation.
The appeal was dismissed on the basis that there was no evidence of a second instance of this complication and general evidence of a lack of probity, stress and incompetence in other areas of practice were incapable of making up the deficiency.
In personal injury cases attacks on the credibility or character of a party or witness are common. If liability is in issue then more often than not there are divergent versions of events and the court needs to consider the credibility of the witnesses giving the accounts. When looking at quantum the claimant’s credibility and honesty in describing the extent of their injuries is often challenged.
With so much on the internet it is often very easy to find out information about a party or witness that might potentially impact upon their credibility or character that they have not disclosed. What is more difficult is working out what will be admissible and what will actually help the case.
The evidence that is likely to assist either party in a personal injury claim falls into two broad categories: that going to the truthfulness of a witness and that showing the likelihood of that party being in breach of their duties.
When it comes to evidence of untruthfulness, or a lack of probity as described in Laughton, this is always likely to be relevant where the credibility of a witness is an issue. However, as can be seen from Laughton credibility will not always be an issue and therefore there will need to be an assessment of the particular case.
As recognised in Laughton courts are more ready to admit evidence as being of similar fact than in the past. However, where it could be suggested that the evidence is unsubstantiated and would lead to lengthy argument that would take the case away from the issues of the case it might be possible to persuade the court to use it’s discretion to disallow it.
A recent example of where the court used it’s discretion in this way was in Alleyne v Commissioner of Police for the Metropolis  EWHC 4406 (QB). In a claim for compensation for injuries sustained by a claimant following a police search of his property Judge Seys-Llewellyn QC admitted two unsubstantiated complaints against the officers involved but disallowed a further unsubstantiated complaint on the basis that the particular complaint was highly likely to lead to questions of peripheral matters which would encumber the claim.
On the other hand, during a pre-trial review in the widely publicised Mitchell v News Group Newspapers Ltd  EWHC 3590 (QB) similar fact evidence of Andrew Mitchell repeatedly asserting his status, engaging in confrontation and behaving in a rude and condescending way to police officers was admitted on the basis that it was probative as it went beyond what he was prepared to admit about his behaviour. It was felt that all instances were brief and evidence relating to them confined, therefore would not distort the trial. It was said not to be prejudicial as Mitchell would be able to challenge it and had adduced witness statements stating that he was habitually courteous.
Ultimately it is well known that Mitchell lost the case, however, it is interesting to note that the similar fact evidence was not determinative and Mr Justice Mitting found that none of the incidents caused him to doubt the truth and accuracy of the evidence of Mitchell’s character and conduct (paragraph 90 – Mitchell v News Group Newspapers Ltd  EWHC 4014 (QB)).
When deciding whether to adduce similar fact evidence it is important to consider how far it does go to the issues in dispute and how far off track it is likely to take the trial. In cases of negligence it is unlikely to ever be determinative of liability on it’s own.