Ivy Daisy Chin v The estate of George Edward Chin & Anor

At the interlocutory stage, a court should exclude evidence only where it is plain that, whatever the trial context, the evidence will never be relevant or sufficiently helpful to make admission just and proportionate. Potentially probative evidence is admissible in principle, subject to case-management discretion concerning prejudice, distraction and burden. Background material may assist where it fills gaps or explains evidence, but remote, contentious, unparticularised or disproportionate material may be excluded. Under the Civil Procedure Rules 1998, cross-examination may be ordered where disputed facts and allegations of dishonesty cannot fairly be resolved on written evidence.

This was an interlocutory application in a Part 8 claim by Ivy Daisy Chin, as executor of Ho Chau Ying Chin, seeking an account of proceeds from the sale of a Hong Kong property. The Defendants sought to exclude specified parts of the Claimant’s witness statements and exhibits, arguing that they were outside the permitted evidential response, irrelevant, or should be excluded under the Civil Procedure Rules 1998. The Claimant sought an order requiring witnesses to attend for cross-examination. The court considered the scope of the directions order, the admissibility of background, narrative and credit evidence, proportionality, and whether disputed allegations required oral testing before trial.

The Defendants’ application was allowed in part. The Claimant’s application for cross-examination was granted. Witnesses whose evidence was relied upon at trial were directed to attend for cross-examination, subject to the trial judge’s continuing case-management powers. Costs and consequential orders were left for submissions at formal hand-down.

1. Scope of the evidence order. Evidence served in response to the Defendants’ witness statement was not confined to answering points expressly raised in that statement. It had to be relevant to the issues for trial, which concerned dealings with the sale proceeds, consent, authorisation, approval and entitlement to an account. The Claimant nevertheless had no free hand to introduce unrelated evidence.
2. Pre-trial exclusion. The court adopted the cautious approach in Wilkinson v West Coast Capital [2005] EWHC 1606 (Ch), adjusted so that admission had to be just and proportionate under the overriding objective. The guidance in Rahman v Rahman [2020] EWHC 2392 (Ch), BGC Brokers v Tradition UK [2019] EWHC 3588 (QB) and O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534 was consistent with that approach. Evidence was excluded pre-trial only where it was plain that it would never be relevant or sufficiently helpful to justify admission.
3. Relevance and proportionality. Evidence could be relevant to facts in issue, to the weight or credit of other evidence, or as concise narrative material. The court considered the approach in Rogers v Hoyle [2013] EWHC 1409 (QB) and the guidance on credit evidence in Anglo Eastern Trust Ltd v Kermanshahchi [2002] EWHC 1702 (Ch). Lengthy historical family evidence, repeated statements from the earlier probate proceedings, remote allegations and speculative submissions were excluded as irrelevant or disproportionate. Some evidence about family relationships, financial control and credit was retained for the trial judge.
4. Pleading limits. Undue influence had not been adequately pleaded in relation to any consent, authorisation or approval of dealings with the proceeds. Evidence directed only to undue influence was therefore excluded. Knowledge and approval substantially overlapped with the question whether consent, authorisation or approval should be inferred. The earlier probate findings could be relied upon, but the earlier witness statements were not to be repeated wholesale or used to reopen issues already determined.
5. Cross-examination. The court applied the general rule identified in Smith v Campbell [2025] EWHC 3011 (Ch) and Tui UK Ltd v Griffiths [2023] UKSC 48: disputed factual evidence ordinarily should not be rejected without cross-examination, particularly where dishonesty is alleged. Although there was an element of fishing and substantial additional cost, the Claimant had established enough of a factual case that justice and fairness required cross-examination.

not stated in the judgment.