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If, despite such precautions and despite discouragement from the bench, one of the
parties nevertheless persists in an unduly prolix investigation of quite marginal issues,
the case might (as the Bar Association pointed out) justify the exclusion of such
evidence as "insufficiently relevant", adopting the approach taken by Hoffmann LJ in
the English Court of Appeal in Vernon v Bosley [1994] PIQR 337. While upholding
the general common law proposition that a judge has no discretion to exclude
admissible evidence in a civil case, his Lordship stated as follows :-
"The cardinal principle of admissibility is relevance. But relevance is always a matter of
degree. How relevant must evidence be in order to be admissible Ordinarily, the threshold is
very low. It is an important aspect of an adversary system of justice that a party should so far
as possible be allowed to decide how to present his case. If he or his counsel thinks that an
item of evidence or a line of cross-examination may be relevant, the court is generally very
reluctant to shut it out. He should not be left with a feeling that he might have won if only he
had been allowed to adduce evidence or ask questions which the judge refused to hear. Nor
should he be unnecessarily controlled or directed in the way he conducts his presentation of
evidence or cross-examination. Particularly if he is represented by a professional advocate on
whose sense of responsibility the court can rely. The judgment of Denning LJ in Jones v
National Coal Board [1957] 2 QB 55 is a classic statement of the case for judicial abstention.
But there are limits to the extent to which the parties can be allowed free rein. A party's right
to choose how to present his case may have to be balanced against other legitimate public or
private interests. For example, both the opposing party and the general public have an interest
in keeping down the length and cost of litigation. On this ground, the judge will sometimes
rule inadmissible the exploration of side-issues which, though possibly having some potential
relevance, do not appear sufficiently relevant to justify the time and expense which would be
required to investigate them."
The operation of this principle was illustrated by the exclusion of similar fact evidence
in civil cases which :-
"...... shows that the degree of relevance needed for admissibility is not some fixed point on a
scale, but will vary according to the nature of the evidence and in particular the
inconvenience, expense, delay or oppression which would attend its reception. Similar fact
evidence is an obvious case in which the prospect of having to investigate collateral issues
makes it impossible for the court to take the relaxed attitude to relevance which it would
ordinarily prefer."
Notes
[1994] PIQR 337 at 339.
At 340.
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