Desmond v Bower

Similar fact evidence should be admitted where it is cogently probative of a material issue and the jury requires the evidence in its proper context. A trial judge should not admit part of a connected evidential episode while excluding a short recorded conversation that may materially bear on motive, credibility and the alleged direction of publication.

An appellate court will rarely interfere with a trial judge’s evidential or case-management ruling. It may do so where the ruling is plainly wrong, creates a real risk of injustice, and the asserted delay or prejudice does not justify excluding material evidence. A renewed application is not too late merely because it follows the close of a party’s case where the earlier ruling expressly left the issue open and no additional unfairness is shown.

In a libel action brought by Richard Desmond against Tom Bower concerning allegations in a book, Bower relied on justification. He sought to adduce evidence connected with the separate Pentagon litigation, including a recording of a telephone conversation between Desmond and Jafar Omid.

Following an earlier appeal, the Court of Appeal had permitted a witness summons to be issued to Omid: [2009] EWCA Civ 667. Eady J admitted evidence of the ensuing publication and settlement, but excluded the recorded conversation. After Desmond and the newspaper editor had given evidence, Eady J declined a renewed application to admit the recording, principally because of timing and possible delay.

The central issue was whether the recording was admissible as similar fact evidence relevant to an alleged grudge and to whether Desmond had directed publication of a damaging article.

1. Appeal allowed unanimously. The judge’s exclusion of the recording was plainly wrong. The recording was an apparently important adjunct to the similar fact evidence already admitted, and its absence risked a false conclusion by the jury about whether Desmond bore Omid a grudge and whether that bore on the genesis of the later article.
2. The evidence was capable of being cogently probative of the pleaded allegation that Desmond was prepared to cause his newspaper to publish a damaging story to settle a personal score, regardless of its truth. Once the evidence of the article and settlement had been admitted, it was difficult to justify excluding the recorded conversation which supplied the alleged threat and relevant context. The court’s earlier approach to relevance and admissibility under O’Brien v Chief Constable of the South Wales Police [2005] UKHL 26 supported that conclusion.
3. The Court of Appeal recognised the need to respect a trial judge’s case-management decisions. Applying the restraint described in G v G (Minors: custody appeal) [1985] 1 WLR 647, intervention is exceptional. Here, however, the decision fell outside the permissible range because the risk of injustice from exclusion substantially outweighed the limited prejudice caused by admitting a short recording.
4. The renewed application was not impermissibly late. The earlier ruling had expressly left open reconsideration after the evidence of Desmond and the editor. Bower was entitled to await that evidence, and the timing of the application did not make Desmond worse off than an earlier application would have done.
5. Desmond could, if he wished, return to the witness box and address the conversation. The defendant was permitted to rely on the recording and such surrounding circumstances as were necessary to make it comprehensible to the jury. Any application for an adjournment remained for the trial judge.

• Court of Appeal (Civil Division): Allowed Bower’s interlocutory appeal and directed that the recorded telephone conversation, with necessary surrounding context, could be relied upon: [2009] EWCA Civ 857.
• Court of Appeal (Civil Division): On an earlier interlocutory appeal, allowed Bower to issue a witness summons against Omid and left relevance and admissibility to be determined by the trial judge in light of the evidence: [2009] EWCA Civ 667.
• High Court, Queen’s Bench Division (Eady J): Admitted parts of the Pentagon evidence but excluded the recorded conversation on 13 July 2009. After a renewed application following the claimant’s evidence, maintained that exclusion on 17 July 2009.