Witness evidence—similar facts evidence
Witness evidence—similar facts evidence

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Witness evidence—similar facts evidence
  • Similar facts evidence—meaning and the general position
  • Stage 1—relevance
  • Stage 2—discretion
  • Arguments for admitting similar fact evidence
  • Arguments for excluding similar fact evidence

Similar facts evidence—meaning and the general position

On occasion, evidence may exist that, for example, your client or opponent has behaved in a similar way to that alleged in the instant proceedings. In those circumstances, you may wish to seek to admit such evidence of similar (albeit unconnected) incidents or facts.

The general position tends to be that facts similar to a fact in issue are not generally admissible to prove the occurrence of that fact in issue, etc. However, various exceptions to this general position have been established and, it seems, the courts will generally admit evidence of similar facts if it is logically probative, it is not oppressive or unfair to the other side, the other side has fair notice and is able to deal with it, etc.

In determining an application to admit similar fact evidence, the courts will tend to adopt the two-stage test set down by the (then) House of Lords in O'Brien—see below.

In Mohidin, the court noted the distinction between the material passing the stage one and stage two tests under O'Brien and the trial judge actually admitting any of that evidence—see: Lessons in evidence (Mohidin v Commissioner of Police of the Metropolis).

Stage 1—relevance

The House of Lords (as it then was) in O'Brien held 'the test of admissibility of similar fact evidence in a civil case is one of relevance only'.

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