Christoforou v Christoforou & Anor

The court may exclude an issue, evidence or cross-examination before trial where its admission would generate disproportionate expense, delay, satellite issues or oppression, even if the material is technically admissible. The court must balance that power against the serious risk of preventing a party from presenting its case and must give weight to the professional assessment of counsel. Similar-fact evidence is subject to a two-stage analysis: whether it is potentially probative and therefore admissible, followed by whether case-management considerations justify exclusion. Pre-trial exclusion is appropriate where a late amendment would require extensive investigation, jeopardise the trial date and concern matters peripheral to the central issues.

The claimant sought a declaration that he was beneficially entitled to a property owned by the second defendant company, relying on a common intention and detrimental reliance. The defendants denied the alleged common intention and advanced a counterclaim concerning the parties’ contributions.

By amendment, the defendants alleged that the claim formed part of a wider campaign by family members to harass the first defendant and deprive him of assets. The claimant applied to strike out those passages, exclude the issues from the trial and restrict related evidence and cross-examination. He also sought further information about the amended defence.

The central issues were whether the new allegations were merely amplification of the original defence, whether reliance on matters raised in separate proceedings was abusive, and whether the allegations should be excluded on case-management and proportionality grounds.

1. The application was substantially granted. The new paragraph 9 of the amended Defence and Counterclaim, and the reference in paragraph 12 to the examples in paragraph 9, were struck out and the issues raised by them were excluded from consideration at trial. The defendants were ordered to provide the further information properly requested by the claimant.
2. The allegations in paragraph 9 were not inherent in the original defence. The original pleading concerned alleged conduct by the claimant and his brother in the specific context of the matrimonial proceedings and used that conduct to explain evidence relied upon by the claimant. The amendment introduced a materially wider case that the present claim was part of a continuing campaign against the first defendant.
3. Henderson v Henderson did not prevent the defendants relying on matters also raised in separate proceedings. They were relied upon defensively, rather than as an attempt to relitigate a concluded claim. The counterclaim was likewise not abusive because it concerned the parties’ contributions to the property, not the allegations in paragraph 9.
4. The evidence concerning paragraph 9 was similar-fact evidence. Applying the approach in J P Morgan Chase v Springwell Navigation Corporation, it was potentially probative and therefore admissible at the first stage. At the second stage, however, the court had to consider distortion of the trial, collateral issues, prejudice, expense, delay and proportionality. The approach applied generally to the exclusion of otherwise admissible evidence.
5. Although pre-trial exclusion required caution, the court could act before evidence and disclosure costs were incurred where the material would cause substantial additional preparation, require findings on numerous peripheral disputes, and probably vacate the listed trial. The late introduction of the defendants’ new case materially reduced the force of any grievance arising from its exclusion.
6. The three allegations concerning judicial or official findings about the brother’s conduct and reliability, and the allegation concerning his removal from the matrimonial home, were sufficiently discrete to remain open for the trial judge’s decision on credit and related cross-examination. The court did not determine in advance whether such questioning should be permitted.

First-instance case-management decision. No earlier appellate decision was stated in the judgment.