Desmond v Bower

Similar-fact evidence in a libel action is not confined to evidence supporting a general Lucas-Box meaning or a trait of character. Evidence of other incidents, including subsequent events, may be relevant if it makes it more probable that the claimant acted as specifically alleged. The trial judge must then assess admissibility, prejudice and proportionality. An appellate court may permit a late witness summons so that potentially relevant evidence is available for that assessment, without deciding its final admissibility. The appeal was allowed and permission was granted to issue the summons.

Richard Desmond brought a libel claim concerning a passage in Tom Bower’s book about Conrad Black. Bower pleaded justification of a specific incident involving articles about Lord Black and Hollinger. In an earlier judgment, Eady J struck out broader allegations but left the specific issue and related allegations. After witness statements disclosed the later Pentagon affair, Bower sought a summons requiring Jafar Omid to attend trial and produce documents. Eady J refused permission at a pre-trial review because the evidence concerned subsequent events and was said to fall outside the earlier narrowing of the issues. The appeal concerned the relevance and admissibility of that evidence, and whether its potential prejudice or disproportionate effect justified refusing the summons.

1. Appeal allowed. The Court of Appeal granted permission to issue the witness summons requiring Jafar Omid to attend trial and produce documents. It did not determine the ultimate admissibility of the evidence.
2. Under Civil Procedure Rules 1998, r 34.3(2)(a), permission was required because the summons was sought less than seven days before trial. Had it been issued in time, the trial judge could still have dealt with objections and admissibility.
3. The approach in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534 required the court first to ask whether the evidence was probative of a pleaded issue, and then whether its prejudicial effect outweighed its probative value. Similar-fact evidence may assist in proving a specific allegation. It is not confined to a general Lucas-Box meaning or a trait of character.
4. Subsequent events may be relevant to justification in a libel action. That is distinct from fair comment, where only matters preceding the defamation can be relevant. The distinction between pleadings and evidence also remained important: the earlier ruling on the pleadings did not finally determine the admissibility of evidence bearing on the pleaded issue.
5. The Pentagon affair had striking similarities to the pleaded incident. It concerned a financial publication, Desmond’s personal interest and alleged animus, the same editor, publication without putting the allegations to those concerned, and a settlement. It was materially different from unrelated collateral matters previously excluded. The evidence was also sufficiently limited in scope, and Desmond could not readily claim unfair prejudice in investigating conduct for which he had accepted personal responsibility.
6. Authorities concerning appellate restraint in case management, including Polly Peck plc v Trelford [1986] QB 1000, McPhilemy v Times Newspapers [1999] EMLR 751 and GKR Karate v Yorkshire Post No 1 [2000] EMLR 396, did not prevent intervention because the refusal was essentially based on an error of law rather than case management. The trial judge was to decide relevance, admissibility, prejudice and proportionality when the evidence and submissions were before the court.

• Court of Appeal (Civil Division): On 7 July 2009, allowed the appeal and granted permission to issue the witness summons.
• High Court, Queen’s Bench Division: Eady J refused permission at a pre-trial review on 1 July 2009. His earlier judgment on the pleadings was reported as 2008 EWHC 2952 (QB).