Lavelle v Noble

Procedural fairness does not require a civil trial to be reopened whenever late evidence appears potentially important. Evidence must be prepared and introduced in accordance with the case-management regime, especially where expert or forensic evidence is involved. Even technically admissible evidence may be excluded where admitting it would disrupt the trial, prejudice other parties or require a second trial in all but name. A witness should generally be confined to the contents of the witness statement unless there is a good reason to permit amplification. The court also expressed doubt about the concession that civil proceedings cannot involve joint enterprise, but did not decide that issue.

The appellants, two children of a man who died after a fight in a public house, brought civil claims against five defendants. The trial judge dismissed the claims after refusing several late applications concerning DNA material, witness statements, an inquest transcript and the attendance of a key witness. The judge also refused to require the defendants to give oral evidence and declined to adjourn the trial.

On appeal, the appellants challenged those procedural rulings. They argued that the DNA schedule was documentary hearsay, that statements and inquest evidence should have been admitted, and that the trial should have been adjourned so that Mark Kirk could give oral evidence. The central issue was whether the judge had acted wrongly in applying the procedural and case-management rules to evidence introduced at or near the end of the trial.

1. Appeal dismissed. The appellants accepted that, on the evidence remaining after the challenged rulings, the claims had rightly been dismissed. The appeal therefore concerned the judge’s evidential and case-management decisions.
2. The judge was entitled to refuse permission to rely on the late DNA schedule. The schedule did not identify the forensic expert, its provenance was unclear, and it did not comply with CPR Part 35. The court expressed considerable doubt about the argument that Part 35 did not apply merely because the material had originally been prepared for criminal proceedings. Even if the schedule were treated as admissible documentary hearsay under section 1 of the Civil Evidence Act 1995, the judge could still exclude it under the case-management power in CPR 32.1(2).
3. The judge was entitled, and in the circumstances bound, to refuse the late applications to introduce statements and the coroner’s inquest transcript after the appellants had closed their case and submissions had substantially been made. The applications would have reconstituted the trial.
4. The court had no power to order the defendants to give oral evidence. Nor was there a good reason under CPR 32.5 to permit Mr Kirk to give materially amplified evidence after the close of the case. An adjournment would have required the defendants to reconsider their positions and would have produced a second trial in all but name.
5. The appeal could not succeed against the second defendant on Mr Kirk’s account, since that account placed him restraining Mr Kirk when the deceased was later found with the bar. The court also expressed considerable doubt about the concession that there was no scope for joint enterprise in civil proceedings, but did not decide the point.
6. Lord Justices Munby and Pill agreed with Lord Justice Hooper. The court invited the relevant professional bodies to examine the conduct of those responsible for preparing the case.

• Court of Appeal (Civil Division): Appeal dismissed in [2011] EWCA Civ 441.
• Oxford County Court: HHJ Harris QC dismissed the appellants’ claims after excluding the evidence and refusing the late applications challenged on appeal.