Ruta Kerseviciene v Mide Quadri & Anor.

At an interim case-management stage, evidence showing patterns in a body of similar claims is not inadmissible merely because it contains calculations or may involve unstated statistical assumptions. A lay witness may give factual evidence of a pattern of conduct. The court must distinguish admissibility from weight: evidence may be admitted where it has a real prospect of being probative, while its reliability, expert character and ultimate significance remain matters for trial.

Similar fact evidence in a civil claim is subject to a two-stage inquiry: potential probative relevance, followed by the discretionary case-management question whether admission would cause unfairness, disproportionate burden or trial distortion.

Five claimants appealed from a decision of HHJ Backhouse in the Mayor and City of London Court refusing to debar witness statements by James Stevens, a director and head of organised fraud at DWF. The statements analysed data from approximately 372 claims handled by Ersan & Co, including the high incidence of alleged psychological injury, referrals for psychological assessment and lengthy recovery periods.

The appeals concerned whether the evidence was impermissible expert evidence contrary to the Civil Procedure Rules 1998 and whether its selective or unsupported nature made it unreliable. The central issue was whether the evidence should be excluded before trial.

1. Appeals dismissed. The evidence was not excluded at the interlocutory stage. The court did not decide that it was conclusively factual, reliable or sufficient to prove fundamental dishonesty.
2. The evidence was capable of being treated as similar fact evidence or evidence akin to similar fact evidence. The principles in O’Brien, as summarised in Springwell Navigation Corp v JP Morgan Chase Bank [2015] EWCA Civ 1602, required consideration of whether the evidence was potentially probative of an issue and, if so, whether case-management considerations justified exclusion.
3. There were genuine concerns that the evidence might contain statistical assumptions, lack comparators and support inferences that could not safely be drawn without expert or further evidence. Those concerns affected weight and the evaluation at trial, but did not make exclusion necessary at this stage.
4. The evidence might assist in testing the methods of medical witnesses or other professionals, and might acquire significance when considered with the evidence as a whole. It was therefore sufficiently potentially probative of the pleaded allegation of fundamental dishonesty.
5. No overriding case-management reason, including unfairness or disproportionate burden, required exclusion before trial. The trial judge would decide whether the evidence was expert evidence in substance, what weight it deserved, and whether it proved anything.
6. The court also upheld the refusal to entertain an informal oral application for expert evidence. Any application should be made formally and should identify the proposed expertise and issues. The County Court could consider whether expert or factual evidence should be admitted alongside Mr Stevens’s evidence and whether a case-management conference was appropriate.

• High Court (King’s Bench Division) [2022] EWHC 2951 (KB): appeals dismissed; the refusal to debar Mr Stevens’s evidence was upheld.
• Mayor and City of London Court: HHJ Backhouse refused to debar the first witness statement of Mr Stevens.