EM (Zimbabwe) v SSHD

Factual and Procedural Background

This interlocutory appeal arises from a libel action in the High Court involving a newspaper proprietor (the Appellant) and a journalist and author (the Respondent). The dispute concerns a book published by the Respondent, which allegedly contained defamatory statements about the Appellant. Central to the appeal is the admissibility of evidence relating to a telephone conversation between the Appellant and a third party, the managing director of a hedge fund ("Pentagon Capital Management Plc"), recorded on 10 July 2008.

The telephone conversation concerned a financial dispute over an investment made on behalf of the Appellant's son. The Respondent seeks to introduce this conversation as similar fact evidence to support an allegation that the Appellant acted out of personal animus in directing defamatory publications. The trial judge admitted some related evidence but excluded the telephone conversation and associated materials on grounds including potential delay and prejudice.

The appeal challenges the trial judge's refusal to admit the tape recording and related evidence, arguing that exclusion risks a miscarriage of justice. The Court of Appeal had previously considered related interlocutory issues, including witness summonses and the scope of evidence admissible concerning the "Pentagon litigation," which had been settled.

Legal Issues Presented

1. Whether the telephone conversation tape recording and related evidence constitute admissible similar fact evidence relevant to the libel claim.
2. Whether the trial judge's refusal to admit the tape recording was a proper exercise of case management discretion or amounted to a manifest injustice.
3. Whether the timing of the renewed application to admit the tape recording justified its exclusion.
4. The extent to which prior interlocutory rulings and the Court of Appeal's guidance on relevance and admissibility should influence the trial judge's decision.

Arguments of the Parties

Appellant's Arguments

• The telephone conversation is central similar fact evidence demonstrating the Appellant’s motive and conduct in ordering defamatory publications.
• The trial judge’s exclusion of the tape recording was plainly wrong and risks a miscarriage of justice.
• The timing of the renewed application to admit the tape was reasonable and justified, given the trial context and strategy.
• Excluding the tape prevents the jury from assessing the credibility of the Appellant’s denial of bearing a grudge.
• The earlier interlocutory judgment by the Court of Appeal strongly indicated the tape's admissibility.

Respondent's Arguments

• The telephone conversation relates to a collateral matter irrelevant to the libel claim.
• Admitting the tape would cause undue delay and prejudice, as it might require extensive additional evidence, including from potential witnesses such as Mr Ronson.
• The trial judge’s refusal was a proper case management decision entitled to deference.
• The central issue is whether the Appellant ordered the publication, not whether he bore a grudge.
• The renewed application to admit the tape was made too late and would disrupt the trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal carefully considered the relevance and probative value of the telephone conversation evidence in the context of similar fact evidence rules. The court acknowledged the trial judge’s discretion in case management but concluded that the exclusion of the tape recording was plainly wrong and risked a miscarriage of justice. The court noted that the prior interlocutory judgment had already indicated the evidence’s potential materiality, and that the tape was directly relevant to assessing whether the Appellant bore a grudge motivating defamatory publication.

The court rejected the argument that the timing of the renewed application justified exclusion, finding the delay reasonable and justified by trial strategy and procedural developments. It also found the concerns about additional evidence and delay insufficient to exclude the tape, especially given the possibility of limiting further evidence to what was necessary for fairness.

The court emphasized the importance of allowing the jury to consider all relevant evidence to avoid false conclusions, particularly regarding the Appellant’s denial of a grudge. The court applied the standard that appellate intervention is warranted when a decision is manifestly unjust, concluding that this threshold was met.

Holding and Implications

Appeal Allowed.

The Court of Appeal overturned the trial judge’s exclusion of the telephone conversation tape and related evidence, permitting the Respondent to rely on this evidence at trial. The ruling ensures the jury will have access to potentially critical similar fact evidence relevant to the Appellant’s motive and conduct. The decision does not establish a new legal precedent but clarifies the application of established principles on admissibility and appellate review of case management decisions in libel trials. The trial judge retains discretion over consequential matters such as potential adjournments and the scope of further evidence.