Introduction

The case of EG against The Governors of The Fettes Trust ([2021] ScotCS CSOH_128) was adjudicated in the Scottish Court of Session's Outer House on December 22, 2021. The plaintiff, identified as EG, alleged that during his tenure as a pupil in 1975 and 1976, he was subjected to repeated physical and sexual assaults by a teacher employed by The Fettes Trust. EG sought damages amounting to £1,000,000, compounded by interest at a rate of 8% per annum from September 1, 1975. The Governors of The Fettes Trust, as the defendant, contested the veracity of these allegations, albeit acknowledging potential vicarious liability should the assaults be substantiated.

Central to this litigation was EG's supplementary assertion that the teacher had perpetrated similar assaults on three other pupils at the same institution. The defendant sought to prevent the case from proceeding to a civil jury trial on the grounds that allowing such similar fact evidence would constitute a "special cause" under section 11 of the Court of Session Act 1988.

Summary of the Judgment

In his opinion, Lord Clark meticulously evaluated the arguments presented by both parties regarding the admissibility of similar fact evidence and the applicability of a jury trial in this civil case. He assessed the precedents cited by the defendant, which traditionally limit the introduction of similar fact evidence in civil proceedings unless it serves a corroborative function, particularly in instances of sexual assault.

Lord Clark ultimately concluded that the defendant had successfully demonstrated the existence of a special cause, thereby justifying the prevention of the case from advancing to a jury trial. The court emphasized that the complexity of assessing damages, particularly concerning wage loss, employability, and pension loss over an extended period, necessitated judicial oversight rather than jury deliberation.

Consequently, the motion to allow the case to proceed to a civil jury trial was denied, and the matter was remitted for a trial before answer.

Analysis

Precedents Cited

The judgment extensively referenced historical and contemporary precedents to substantiate the decision to limit the use of similar fact evidence in this civil context. Key cases included:

• A v B (1895) 22 R 402: Established foundational principles regarding the admissibility of evidence and set a precedent for evaluating the relevance of similar fact evidence.
• Inglis v The National Bank of Scotland Ltd (No.1) 1909 SC 1038: Reinforced the constraints on introducing evidence of similar conduct in civil actions, emphasizing the need for specificity and relevance.
• Moorov v HMA 1930 JC 68: Introduced the concept of mutual corroboration in criminal cases, which was scrutinized for its applicability in civil proceedings.
• Higgins v DHL International (UK) Ltd 2003 SLT 1301: Illustrated scenarios where special cause was recognized due to the complexity and admissibility of evidence, influencing the court's stance on the current case.
• D v Denis Alexander and anr: An unreported decision providing factual similarities that the defendant leveraged to argue against jury involvement.

Additionally, the Scottish Law Commission's Report on Similar Fact Evidence and the Moorov Doctrine was considered, offering a critical perspective on the evolution and current stance of similar fact evidence in civil law.

Legal Reasoning

Lord Clark approached the legal reasoning by dissecting the arguments pertaining to the definition and implications of a "special cause." Under section 11 of the Court of Session Act 1988, personal injury actions are typically subject to a jury trial unless a special cause justifies otherwise, as per section 9(b).

The defendant argued that the introduction of evidence regarding assaults on other pupils was of dubious relevancy, potentially leading to prejudicial delays and complexities in assessing damages. Drawing from precedents like A v B and Inglis v The National Bank of Scotland Ltd, the court recognized the limitations these historical rulings impose on the admissibility of similar fact evidence in civil cases. Moreover, the significant delay in bringing the case (over four decades) and the intricate nature of calculating damages further cemented the presence of a special cause.

The court also evaluated the procedural implications of allowing such evidence to be deliberated by a jury, citing concerns from Boyle v Glasgow Corporation and other cases emphasizing the potential for chaos and inefficiency in trials plagued by relevancy disputes.

Contrarily, the plaintiff contended that a jury was well-equipped to handle the factual determinations inherent in the case, especially concerning causation and quantum of damages. However, the court found the defendant's arguments regarding the complexity and potential prejudicial impact of similar fact evidence to be sufficiently persuasive.

Impact

This judgment underscores the judiciary's cautious stance on the admissibility of similar fact evidence in civil cases, particularly those involving historical allegations of abuse. By affirming the existence of a special cause, the court set a precedent that reinforces the limitations imposed by longstanding rulings like A v B and Inglis v The National Bank of Scotland Ltd.

Future litigants in similar civil actions involving historical abuse or misconduct must navigate these legal constraints, potentially limiting their ability to introduce corroborative evidence based on the defendant's or other claimants' similar allegations. This could lead to increased reliance on direct evidence and may necessitate more robust substantiation of claims without the support of analogous instances.

Moreover, the decision highlights the judiciary's role in balancing the efficient administration of justice against the principles of fair trial rights, particularly in complex and sensitive cases. This balance will likely influence how courts approach similar fact evidence and jury involvement in the future.

Complex Concepts Simplified

Similar Fact Evidence

Similar fact evidence refers to evidence presented in a trial that shows a defendant has engaged in behavior similar to the alleged wrongful conduct in the case at hand. The purpose is to suggest a pattern or propensity, thereby supporting the plaintiff's claim by demonstrating consistency in the defendant's behavior.

Special Cause

A special cause is a legal threshold that, when met, permits the court to deviate from standard procedures—in this context, allowing the case to proceed without a jury trial. Establishing a special cause typically involves demonstrating that exceptional circumstances would impede a fair and efficient jury trial.

Mutual Corroboration

Mutual corroboration is a principle wherein evidence from multiple sources (e.g., multiple complainants) independently supports the credibility of each other. In criminal contexts, it enhances the reliability of claims by demonstrating a pattern of behavior through different witnesses.

Vicarious Liability

Vicarious liability is a legal doctrine holding an employer or principal legally responsible for the wrongful acts committed by their employees or agents during the course of their employment or agency.

Delictual Claim

A delictual claim pertains to civil wrongs or torts where one party alleges that another's unlawful act caused them harm or loss, entitling them to seek compensation.

Conclusion

The judgment in EG v The Governors of The Fettes Trust serves as a pivotal reference point in the realm of civil litigation, particularly concerning the admissibility of similar fact evidence. By affirming the presence of a special cause, the Scottish Court of Session's Outer House delineates the boundaries within which such evidence can be introduced, emphasizing the necessity for relevance and the prevention of prejudicial complications.

This decision reaffirms the judiciary's commitment to upholding procedural integrity and ensuring that jury trials remain focused and efficient, especially in cases burdened by historical allegations and complex damage assessments. For legal practitioners, this underscores the importance of meticulously preparing evidence that stands robustly on its own merits, without undue reliance on analogous instances.

Ultimately, EG v The Fettes Trust contributes to the evolving jurisprudence surrounding similar fact evidence in civil cases, balancing the scales between thorough evidence evaluation and the practicalities of conducting fair and manageable trials.