Mitchell v News Group Newspapers Ltd

Expert evidence in civil proceedings is admissible where recognised expertise, governed by recognised standards, may assist the court on a relevant issue and the witness is sufficiently qualified. Admissible expert evidence may still be excluded or limited where it is not reasonably required, but CPR 35.1 does not impose absolute necessity. Credible evidence said to be capable of conclusively resolving the central issue may satisfy that standard.

Similar-fact evidence in civil proceedings is admissible if it is potentially probative. The court must then decide, as a matter of case management, whether admission promotes a fair, proportionate and manageable trial, weighing probative value against collateral disputes, cost, delay and unfair prejudice.

Two libel actions arose from an incident involving Andrew Mitchell MP and PC Toby Rowland at the Downing Street gates on 19 September 2012. The actions were due to proceed to a trial of preliminary issues concerning the meanings of the words complained of and substantial truth.

At a pre-trial review, the court considered applications to adduce expert evidence on speech duration, peripheral vision and three-dimensional scene reconstruction. It also considered Mr Mitchell’s application to exclude evidence of alleged similar incidents involving police officers, and objections to parts of witness statements. The central questions were whether the proposed expert evidence was admissible and reasonably required, and whether the similar-incident evidence was relevant and should be admitted.

1. Expert evidence. Applying Barings Plc v Coopers & Lybrand (No 2) [2001] EWHC 17 (Ch), expert opinion is admissible under section 3 of the Civil Evidence Act 1972 where recognised expertise, governed by recognised standards and capable of influencing the court’s decision, is established and the witness has sufficient knowledge and experience. Phonetics, optometry and forensic virtual reconstruction met that threshold.
2. The court must also consider whether the evidence would assist the just resolution of the proceedings. Under CPR 35.1, expert evidence is restricted to what is reasonably required. That is not a test of absolute necessity. Evidence credibly said to be capable of conclusively determining the most important issue, or materially assisting the assessment of probabilities, may be reasonably required. Permission was therefore granted for the proposed expert evidence, subject to directions for reports and meetings of experts.
3. Similar-fact evidence. Following O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534, admissibility turns at the first stage on relevance: evidence is admissible if, assuming it provisionally to be true, it is potentially probative of an issue requiring proof. The evidence of a number of previous encounters with police officers could bear on the alleged conduct and state of mind at the Downing Street incident. Six allegations were excluded as insufficiently probative.
4. At the second stage, the court exercises case-management discretion. It must consider proportionality, trial length, collateral issues, the burden on the parties, fading memories and unfair prejudice, while seeking a fair and manageable trial. The nine remaining disputed similar incidents were admitted. Credibility and weight were matters for trial.
5. Evidence relevant only to damages was excluded from the versions of witness statements used at trial because damages were not among the preliminary issues.

The judgment arose from a pre-trial review in two first-instance libel actions before the High Court. The actions were listed for a trial of preliminary issues on meaning and substantial truth.