O'Brien v Chief Constable of South Wales Police

The House held that in civil proceedings similar-fact evidence is admissible if it is relevant in the sense of being logically probative or disprobative of an issue in the action. The first stage of the inquiry is admissibility, judged by reference to relevance and probative value; the second stage is case management, in which the judge exercises a discretion to exclude or limit evidence on grounds such as unfair prejudice, distraction, burden, cost and trial management under the Civil Procedure Rules.

The court rejected the submission that civil similar-fact evidence must satisfy an enhanced relevance test (such as being "reasonably conclusive" or having "substantial probative value") akin to that applied in criminal trials under the Criminal Justice Act 2003. The trial judge and the Court of Appeal were held to have been entitled to regard the proffered similar-fact evidence as potentially probative and therefore admissible, subject to the trial judge's case-management discretion.

Background and factual matrix:

• Michael O'Brien was convicted of murder in 1988, served eleven years, and had his conviction quashed after a Criminal Cases Review Commission referral; the Court of Appeal allowed the appeal on 25 January 2000. Mr O'Brien sued the Chief Constable for misfeasance in public office and malicious prosecution seeking aggravated and exemplary damages in addition to statutory compensation.
• He alleged systematic police impropriety in the investigation and prosecution, principally by Detective Inspector Lewis and with the knowledge or approval of Detective Chief Superintendent Carsley. He sought to adduce similar-fact evidence from two prior investigations (the Griffiths/Welsh Bomb trial and the Ali/Karen Price investigation) to support his claim that the officers used oppressive tactics, fabricated admissions and suppressed exculpatory material.

Procedural posture:

• At case management His Honour Judge Graham Jones admitted the proposed similar-fact evidence in principle though he retained a discretion to exclude parts on case-management grounds. The Court of Appeal ([2003] EWCA Civ 1085) reviewed and largely upheld that approach, but modified one exclusion. The Chief Constable appealed to the House of Lords.

Issues before the House:

• Whether civil similar-fact evidence must meet a heightened admissibility test (for example, be "reasonably conclusive" or possess "enhanced relevance/substantial probative value") analogous to the rules applied in criminal trials; and
• If not, what principles govern admissibility in civil proceedings and the subsequent case-management discretion to admit, limit or exclude such evidence.

Court's reasoning and disposition:

• The House emphasised the two-stage approach: (1) admissibility judged solely by whether the evidence is logically probative of a matter requiring proof (relevance in the Kilbourne sense); and (2) judicial case management under the Civil Procedure Rules, weighing probative value against unfair prejudice, distraction, burden, complexity and proportionality. The court rejected the automatic application of the criminal rules (including the enhanced relevance test embodied in DPP v P and sections 100 and 101–106 of the Criminal Justice Act 2003) to civil claims.
• The judges concluded that the trial judge and the Court of Appeal were entitled to treat the proffered similar-fact material as potentially probative. The appeal was dismissed; the House left the ultimate case-management decisions in the hands of the trial judge, subject to consistency with the rulings already made on admissibility.

Appeal dismissed. The House held that in civil proceedings admissibility of similar-fact evidence depends on logical probative value (relevance); the stricter, enhanced-probative tests developed for criminal trials do not automatically apply in civil cases. The trial judge and Court of Appeal were correct to regard the proposed similar-fact evidence as potentially probative and therefore admissible in principle, though the trial judge retains case-management discretion to exclude or limit such evidence under the Civil Procedure Rules.

Appeal to the House of Lords from the Court of Appeal ([2003] EWCA Civ 1085), which had reviewed and mainly upheld the decision of His Honour Judge Graham Jones at case management to admit similar-fact evidence in principle. The underlying criminal convictions had earlier been quashed by the Court of Appeal after a Criminal Cases Review Commission referral (appeal allowed on 25 January 2000).