Reference:  EWCA Civ 667
Court: Court of Appeal (Civil Division)
Judge: Rix and Wilson LJJ
Date of judgment: 7 Jul 2009
Summary: Defamation - Libel -Justification - Similar fact evidence - Admissibility to prove specific charge
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Adrienne Page QC - Leading Counsel (Defendant)
David Sherborne (Claimant)
Instructing Solicitors: Schillings for C; Wiggin for D
D was refused permission by the trial judge to issue a witness summons for one JO to produce documents and give evidence at trial. The evidence was to be relied on as similar fact and related to an un-pleaded incident post-dating the event the subject of the words. The Judge had previously ruled that the words contained a specific charge, applying Bookbinder v Tebbit  1 WLR 640, and had struck out particulars justifying other incidents:  EWHC 2952 (QB).
(1) Whether similar fact evidence can be admissible to prove propensity on the part of C where the defamatory sting is of a specific charge and, if so, whether such evidence can extend to incidents post-dating the events the subject of the words;
(2) Whether the admission of such evidence would be inconsistent with the earlier decision striking out other incidents from the justification plea.
Setting aside the Judge’s Order and granting permission to issue the witness summons subject to the trial judge’s adjudication on relevance and admissibility upon the tendering of the witness:
(1) Similar fact evidence can be admitted although the justification has been confined to a specific instance of misconduct. The question is whether “the matter which requires proof would be more probable”. Taking a broad and non-technical approach, the real issue was whether C was the kind of man who would act in the way alleged in the justification plea. Such evidence was not confined to prior events save where only prior events could be relevant, such as in justification of reasonable grounds or in fair comment (see O’Brien v Chief Constable of South Wales Police and Cohen v Daily Telegraph Ltd);
(2) The admission of such evidence would not be inconsistent with the Judge’s earlier ruling, which itself drew a firm distinction between pleadings and evidence.
For defendants whose justification plea has been narrowly confined by a ruling under Bookbinder v Tebbit this will be a welcome clarification that the admission of similar fact evidence under O’Brien is not precluded as an aid to proving the specific charge to be justified.
The trial judge subsequently refused to allow the documents produced by JO to be admitted, on the grounds that the application had been made too late. That decision too was successfully appealed to the Court of Appeal by D, in whose favour the jury ultimately found.