Condron v ACC Bank and Others and Cuttle v ACC Bank Plc

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Charleton
• Judgment Date: 11 October 2012
• Neutral Citation: [2012] IEHC 395
• Date: 11 October 2012

Condron v ACC Bank plc (t/a ACC Bank) & Ors

No Redaction Needed

Commercial

Between

Joseph Condron

plaintiff

and

ACC Bank plc trading as ACC Bank, Harmony Row Financial Services Limited trading as Financial Engineering and Financial Engineering Network

defendants

Patrick Cuttle

and

ACC Bank plc trading as ACC Bank

[2012] IEHC 395

Record No. 1353P/2010

Record No. 2473P/2010

The High Court

EVIDENCE

Practice and procedure

Claim arising out of sale of investment product - Claim that product marketed without proper warning as to risk - Test case - Motion seeking order prohibiting calling of extra witnesses - Evidence of plaintiffs in separate actions depending on outcome of litigation - Objection on basis that evidence would amount to inadmissible similar fact evidence - Doctrine of similar fact evidence - Relevance of evidence - Assessment of evidence by trial judge - Whether evidence relevant to fact in issue in proceedings - Pre-trial exclusion of evidence - Discretion of trial judge - The People (AG) v Kirwan [1943] 1 IR 279; Moorov v HM Advocate (1930) JC 68; Hughes v HM Advocate [2008] SCCR 399; DPP v P [1991] 2 AC 447; B v DPP [1997] 3 IR 140; Reg v Straffan [1952] 2 QB 911; Rex v Smith (1915) 11 Cr App Rep 229; Von Gordon v Helaba Dublin Landes Bank Hessen-Thuringen International (Unrep, SC, 17/12/2003); O'Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 WLR 1038; DPP v Kilbourne [1973] AC 729; Byrne v Grey [1988] IR 31; Berkeley v Edwards [1988] 1 IR 217; Wilkinson v West Coast Capital [2005] EWHC 1606, [2005] All ER 321; Re Unisoft Group Limited (No 3) [1994] 1 BCLC 609 and Vernon v Bosley [1999] PIQR 337 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 63A, r 5 - Application refused (2010/1353P - Charleton J - 11/10/2012) [2012] IEHC 395

Cuttle v ACC Bank plc

Facts: The first defendant brought a motion seeking an order prohibiting the plaintiff from calling extra witnesses to give evidence at trial in the matter. The plaintiff had initiated proceedings against the first defendant for the sale of a product without warning of the possible risks. The claim was based on breach of contract and misrepresentation. This was a test case in the sense that there were some 200 other investors and it was agreed that the outcome of the present would inevitably be relevant to other claims. Of these investors, a number were the extra witnesses sought to be called by the plaintiff.

The first defendant submitted that the evidence of these other investors would amount to similar fact evidence and therefore not be admitted. In addition for a motion of this kind, the court to hear the motion should differ from the trial court.

Held by Charleton J that the rule as to similar fact evidence originated in criminal proceedings to ensure that a jury did not become subconsciously biased against a defendant. In the instant case, the matter would be determined by a judge, and therefore the bias argument did not apply here. In the present case, the evidence would clearly be relevant, as the additional witnesses' evidence could be of significant probative value in determining the claims.

In respect of the court to hear the motion, the best placed judge to hear the matter would be the trial judge. Otherwise, the discretion available to the judge on how to manage the trial would be unfairly fettered.

The motion was therefore refused.

AG, PEOPLE v KIRWAN 1943 IR 279

MOOROV v HM ADVOCATE 1930 JC 68 1930 SLT 596

HUGHES v HM ADVOCATE 2008 HCJAC 20 2008 JC 338 2008 SCL 713 2008 SCCR 399

DPP v P 1991 2 AC 447 1991 3 WLR 161 1991 3 AER 337

B v DPP 1997 3 IR 140

VON GORDON v HELABA DUBLIN LANDES BANK HESSEN-THURINGEN INTERNATIONAL & ORS UNREP SUPREME 17.12.2003 2003/48/11770

O'BRIEN v CHIEF CONSTABLE OF SOUTH WALES POLICE 2005 2 AC 534 2005 2 WLR 1038 2005 2 AER 931 2005 UKHL 26

COLE IRISH CASES ON EVIDENCE 2ED 1982 1-2

STEPHEN & ORS A DIGEST OF THE LAW OF EVIDENCE 12ED 1948 ART 1

BYRNE v GREY & ORS 1988 IR 31 1988/4/949

BERKELEY v EDWARDS & ORS 1988 IR 217 1988/4/907

WILKINSON v WEST COAST CAPITAL & ORS 2005 AER (D) 321 (JUL) 2005 EWHC 1606 (CH)

RSC O.63A

RSC O.63A r5

1 Mr. Justice Charleton delivered on the 11th day of October 2012

2 1. These cases are listed for trial in November 2012. They are optimistically expected to have a duration of six weeks. The cases are being tried together with three other actions as test cases in the sense that some 200 other plaintiffs have agreed that the outcome of the litigation will determine the result of their claims, subject to the possibility of a separate trial on particular and unusual facts different to those in issue in these proceedings. All of the cases arise out of the sale by ACC Bank of a product known as the "Solid World Bond 5". This was an investment in stocks that the plaintiffs all claim was marketed in an attractive manner, but without proper warning as to risk and, as regards most of them, on a borrow to invest basis.

Issue

3 2. This motion is brought by ACC Bank to seek an order that the plaintiffs be prohibited from calling a handful of extra witnesses beyond those whose witness statements have already been served. Since the claim is made in misrepresentation and breach of contract, crucial to the outcome is what was said, and notified in writing, to each individual investor by each of the bank officials who set up their investment in the product. In that regard, my understanding is that witnesses to this area of fact will constitute each of the five plaintiffs with one other witness called in addition. The defendant bank had different bank officials dealing with each plaintiff and their evidence will be required. In addition the defendant bank is calling evidence as to how this product was to be set up, marketed, what relevant instructions were given to the bank officials and how training was conducted. All of these witnesses will testify as to fact, but they are not alone. Expert witnesses will make up the bulk of the case: ten or more of these; some for the plaintiffs, some for the defendant bank, each saying the same thing in different ways or contradicting each other in their approach and in their conclusion.

4 3. There are four extra witnesses that the plaintiffs wish to call. These witnesses would be plaintiffs in that number of the separate actions that depend on the outcome of this litigation had their case been tried individually. Their complaints regarding the defendant bank are similar to those of the plaintiffs in the test cases. A list of issues has helpfully been prepared for the court of trial. One of the paragraphs puts this before the court: "Whether and if so to what extent was the product marketed and/or sold by ACC [Bank] as a borrow to invest product and the implications, if any, of same".

5 4. Keenly contested at the trial will apparently be the issue of what was said to investors by officials of the defendant bank on the issue of borrowing money to purchase the product. Each plaintiff will have their own evidence to give as to their encounters with the officials of the defendant bank. Each bank official will no doubt give contradicting evidence. As noted, the bank is entitled, in addition, and intends, to call those who were not involved in these encounters on the basis that it is logically probative of what their employees may have done in interacting with customers as to how they were trained or instructed to sell this product. It is also logically probative on the issue of training and instruction as to whether there was any discernible pattern in the approach of the bank officials to others, apart from the plaintiffs, to whom the products were sold. To put it another way, the defendant bank seems to be saying that no one could have been misled as their approach was not misleading; and the customers may be saying that they were all misled, whether they be plaintiffs in the test cases or others who bought the defendant bank's product, because broadly similar misrepresentations were made to them. It is said that any evidence from other investors apart from that of each individual plaintiff will amount to inadmissible similar fact evidence.

Similar fact issues

6 5. That inventive argument is not correct. The doctrine of similar fact evidence developed in the course of criminal cases in response to the need to control the prejudice that naturally arises in the mind of a jury that has to be told about the commission by the accused of offences other than those on which a defendant stands trial. That evidence might be, for instance, that he had gained a particular skill in consequence of a prior incarceration; the classic example being The People (A.G.) v. Bernard Kirwan [1943] 1 I.R. 279, where the accused was tried for murder and the body of the victim had been cut up and disposed of with professional skill. Evidence was admitted that the accused had previously been imprisoned and whilst in jail had been trained, by way of rehabilitation for life after release, as a butcher.

7 6. Similarity of allegation and the cross-corroboration of witnesses often arise from the actions of paedophiles. Sexual cases are notorious for the repetition of offences against a number of vulnerable children and adolescents. If victims have similar stories to tell, the account of one is capable of supporting the account of another. Severing an indictment of several offences against a number of complainants can be wrong as it disguises that true picture from a jury. Trying civil cases of alleged assault on a number of plaintiffs separately would equally carry the same danger. Because of the danger of prejudicial effect, the evidence of offences on other occasions than that at trial must be stronger than would ordinarily render it...