Defamation appeal dismissed; jury verdict upheld despite admitted evidence of tax evasion advice.

THE SUPREME COURT

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

124/01

BETWEEN

BEVERLY COOPER-FLYNN

Plaintiff/Appellant

and

RADIO TELEFÍS ÉIREANN, CHARLIE BIRD AND JAMES HOWARD

Defendants/Respondents

JUDGMENT delivered on the 28th day of April, 2004 by FENNELLY J.

I agree fully with the reasoning of Geoghegan J with regard to the issue of the misdirection of the jury on majority voting. This is not

a case where counsel failed to take a point in his client’s interest. Counsel for all parties were seeking the correct formulation of the

direction on the issue. It was not an issue in which any party had a particular interest. I agree, especially, that, where there has

been such a long and costly trial, it would be a great hardship to any of the parties, particularly the successful defendants, to put

them to the cost and trauma of a new trial.

I agree with the Chief Justice with regard to the form of the questions and, in particular, the right of the third-named defendant to

rely on section 22 of the Defamation Act, 1961.

There is, however, one aspect of this matter upon which I would like to comment. The learned trial judge, at an early stage of the

trial, ruled that the third-named defendant would not be allowed to rely on evidence that the plaintiff had advised investors other

than that defendant to evade tax. The reason for the ruling was that the third-named defendant had served on the plaintiff’s

solicitors, two weeks before the commencement of the trial, particulars of the his plea of justification. At that stage of the trial, many

weeks before the questions were settled, nobody appears to have adverted to the possible application of section 22. No appeal has

been taken from the decision of the learned trial judge to refuse to allow the third-named defendant to rely on the evidence of the

plaintiff’s dealings with other investors. I cannot help commenting that it is difficult to see how the plaintiff was disadvantaged in the

trial by having to confront evidence of justification on behalf of the third-named defendant, which was, in any event, going to be

presented by the first two defendants. The ruling has, however, implications for the form of the third question. By necessary

implication, the third-named defendant would have been permitted to rely on this evidence, if he had given notice in good time. In

reality, the judge’s ruling made little difference to the evidence before the jury. The evidence upon which the third-named defendant

was refused leave to rely was given, in any event. That seems to me to undermine the argument that, having got a favourable

answer to the first question, the plaintiff was simply entitled to have the damages assessed.

I am giving a separate judgment on the question of the admission and use of the letter of 30th July 1990. I consider that its raises

important issues regarding the admissibility of the contents of documents. On all other issues, I agree with the judgment of the Chief

Justice.

I will deal, therefore, with the letter of 30th July 1990, its admissibility, its use and its claimed damaging effect. The appellant, whom I

will describe as the plaintiff in the context of the trial, attaches great importance to this letter. Counsel submits that it was wrongly

admitted into evidence, wrongly placed and left before the jury for a major part of the trial, that it was seriously damaging to the

appellant and that its use rendered the trial unsatisfactory.

I do not need to repeat the account of the matter contained in the judgment of the Chief Justice. It is necessary to consider the

basis on which such a document could be relevant and, therefore, admissible. It is not the plaintiff’s own document and, therefore,

does not fall into that category of document upon which a person may be cross-examined as representing a prior inconsistent

statement (section 4 of the Criminal Procedure Act, 1965). Here, the defendants wished to introduce the letter primarily so as to

show that the appellant was aware of a policy in the National Irish Bank, in which she was an employee, of assisting clients to evade

payment of lawful tax. If she knew of the letter, particularly if she received it, that object would be achieved.

On its face the letter appeared to be addressed to people working with or under the author of the letter, Mr Patrick Cooney, the

Investment Manager in the Financial Advice and Services Division (FASD) of the bank. However, as the evidence subsequently

disclosed, the “letter” was not sent. Thus, it was not truly a letter at all. It might be better to call it a draft. It came from Mr

Courtney’s file in the FASD and was addressed: “Hi Guys.” It contains advice as to how “we,” meaning bank employees would advise

“people who have money invested offshore already or whose money is “Hot.”” The appellant, in her evidence, readily accepted that

the expression “hot money” connoted money upon which lawful tax had not been paid. She said: “I take “hot” money to mean, I

would refer to it as undeclared money to the Revenue.” It was put that it would not be legitimate money and she repeated: “My

understanding would be undeclared money to the Revenue, or undeclared money to somebody.”

It is true that the appellant herself and, later, Mr Cooney suggested that the expression could have a different meaning, connected

with the investment funds of active or risk-taking investors. I would not propose to delay on this point. The way the letter is

expressed is highly suggestive of a taint of illegality, not least because of the mention in the same sentence of “money invested

offshore.” It is not necessary, when assessing the likely effect on a jury, to go behind the appellant’s own primary understanding of

the expression as connoting undeclared funds. In that context and, in the context of the trial it was capable of being damaging.

However, in order for it to be truly evidence against the appellant, it was essential to show that the plaintiff knew of the letter. The

fact is that there was no evidence that she did. Indeed, the evidence is to the contrary. The plaintiff herself denied, in the clearest

terms, ever receiving it. Not only that, but, as was established many days later, when Mr Cooney came to give evidence, the letter

had never, in fact, been sent out. The first Gulf war erupted contemporaneously and the consequent perturbances in international

financial markets sufficiently preoccupied all concerned with the world of banking and investment to cause the letter to be neglected.

According to the appellant, the damage had been done. The jury were all given copies on Day 4, when it was first put to the plaintiff

in cross-examination. Accordingly, it was in their possession at least up to Day 20, when it emerged that the letter had never been

sent to the plaintiff.

To say the least, this was not at all a satisfactory situation. The letter, as I have said, was undoubtedly capable of being damaging

to the plaintiff. That was indeed the defendants’ purpose: if she had received the letter, she knew that the bank had a policy of

facilitating tax evasion. If that could be shown, the letter was both relevant and admissible. Unfortunately, the letter was put to the

plaintiff on a basis that turned out to be incorrect. The origin of the problem was that the defendants were in the unusual position for

a defendant in litigation of being unable to say whether a witness they intended to call, Mr Cooney, would say that the letter had

been sent to the plaintiff. Indeed, they made this clear to the judge during the argument on admissibility in the absence of the jury.

At the time when they sought to put the letter into evidence, the defendants were not in a position to say whether the letter had

been sent to or received by the plaintiff. At most, they could say that they assumed that a draft letter found on the file of the head

of FASD had, in fact, been sent out. In these circumstances, it is difficult to understand the declared intention of the defendants to

cross-examine the plaintiff to the effect that her evidence would be untrue if she were to deny receiving the letter.

It is important to note that counsel for the plaintiff specifically objected to the procedure proposed by the defendants. He told the

court that his instructions were that the plaintiff would deny having received the letter. He said that it would be unfair to have the

letter before the jury for many days before it could be determined whether the defendants’ evidence would establish whether it had

been sent. He suggested, as a means of overcoming this difficulty, that the defendants should prove, in the absence of the jury,

whether the letter had been sent before it was put to the plaintiff. The defendants objected to this course.

The primary basis on which the defendants argued that the letter was admissible against the plaintiff was that she had received it

and knew of its contents. As an alternative, it was argued that it was admissible as evidence of the policy of the bank. I will deal with

these in turn

Counsel for the appellant has cited a number of cases, which appear pertinent to the first claimed basis of admission. It is vital to

bear in mind that the letter was being proffered in order to establish, not merely that Mr Cooney had written the letter, but that the

plaintiff knew about it and, therefore, was specifically aware that, as an employee of the bank she was expected to assist in

furthering a policy of assisting illegal tax evasion. Thus, if she had not received the letter, it was simply not admissible for this

purpose. It could not be placed before the jury at all without proof that she was on notice of its contents.

All three of the cited authorities are criminal appeals. In each case, prosecuting counsel had cross-examined the accused about the

contents of a document which had not been proved. The principles regarding the admissibility of evidence, in the absence of

statutory intervention, are the same, whether the case is civil or criminal. The headnote of R v Seham Yousry 11 Cr App. Rep. 13 CA,

page 13 states: “Counsel ought not to suggest to the jury, by cross-examination or otherwise, the contents of a document which he

is not entitled to put in evidence.” In a prosecution for criminal libel concerning the claim of the accused to be married to the

prosecutor, counsel for the latter, in cross-examination of the accused held in his hand a piece of paper, and instead of saying: “Look

at this piece of paper; do you adhere to your answer?” he described it as a report from the Cairo police as to the appellant’s origin

and invited her counsel to look at it. The latter was sufficiently on guard not to do so. Lord Coleridge J. described this procedure as

being designed to produce the effect that the Cairo police had produced a report so damaging to the accused that her counsel dare

not look at it. He continued:

“Now, that was inadmissible in evidence, and in our judgment that was a wholly wrong method to adopt. Counsel for the

prosecution, holding documents in his hands which he cannot put in, has no right to suggest to the jury in any way what they

are……….”

R v Gillespie and another 51 Cr. App. Rep. 172 concerned a prosecution for falsification of accounts and forgery of the manageress

and cashier of a women’s clothing shop. Sales dockets were put to the accused in cross-examination, without calling the employees

who prepared them as part of the prosecution case. Winn L.J. speaking for the Court of Appeal (Criminal Division) considered it to be

“elementary … that it is not competent to prove a fact against an accused person by producing a document in which that fact is

recorded without calling the maker of the document to say that what he wrote in the document represented a true statement of

fact.” Later he said:

“…if a document is produced to a witness and the witness is asked: “Do you see what that document purports to record?” the

witness may say: “I see it, I accept it as true,” in which case the contents of the document become evidence against him: or

he may say: “I see what is written there, I do not accept it as true,” whereupon that which is purported to be recorded in the

document is not evidence against that person; it becomes non-evidence, the document itself being nothing more than

hearsay.”

In the case of R v Morris Cross (1990) 91 Cr. App. Rep. 115, a case of alleged insider trading, the same court were asked to consider

the action of counsel for the prosecution in putting to the accused a purported statement of a non-witness and cross-examining him

about it. McCowan L.J. in the judgment of the Court stated:

“The right course would have been for the judge to send the jury out and consider the objection calmly. It would have been

apparent to him that the right way to handle the matter was for [counsel for the prosecution] to allow the appellant time to

read the document and then to ask him if the contents were true. That this is the right way to handle the mater is clearly

shown by the case of Gillespie and Simpson…… If the matter had been handled in that way, and the appellant had said that

the contents were true, he could then have been cross-examined about those contents. If, on the other hand, he had said

they were not true, that would have been the end of the matter. As it was [counsel] was allowed to go on cross-examining

about the document although the appellant had never agreed that its contents were true”.

I conclude that the letter should not have been placed before the jury on the first basis, without establishing that the plaintiff had

received it. Counsel for the defendants was entitled to put the letter to her, without identifying it to the jury, ask her to read it and

then ask whether she had received it. If she denied this, she could not have been cross-examined about its contents, until it was

established that Mr Cooney would contradict her on this. This indeed seems to have been the initial understanding of the learned trial

judge. He said on Day 4: “The letter would be passed to the witness; the witness would be asked “did you get that letter?” If she

said “I never got it,” why would we open the contents of the letter to the jury?” If Mr Cooney had said that the letter had been sent

to the plaintiff, the judge should then have been asked to recall the plaintiff for cross-examination about its contents. In fairness to

the defendants, he would have been bound to accede to such an application. An alternative, though more unusual course, would

have been, as suggested by counsel for the plaintiff, to call Mr Cooney, in the absence of the jury. If he had confirmed the sending of

the letter, the plaintiff might have been cross-examined about it in the normal order. In the present case, if either of these courses

had been adopted, no problem would have arisen. The document would simply have had to be put aside.

The foregoing is confirmed by the decision of this Court in Moloney v Jury’s Hotel Ltd. (Unreported 12th November 1999), a decision

upon which counsel for the plaintiff relied, at the trial, in opposing the admission of the letter. That was a personal injuries action,

where the High Court judge had relied on statements contained in medical reports, whose authors had not been called, in a manner

which tended to the discredit of the plaintiff. Barrington J considered that he should not have considered this evidence for that

purpose. He said:

“In making [his] analysis the learned Trial Judge referred to two hospital notes which he assumed tended to undermine a

portion of the Plaintiffs evidence and to support that of [another witness]. The trouble is that neither note is evidence. While

either note could have been put to the Plaintiff in cross-examination (and one was) the cross-examiner would have been bound

by her answer. The persons who made these notes were not called to give evidence. They were not cross-examined and the

possibility that either, or both, of them might have made a mistake was not explored. There is also the fact that the notes

are mutually contradictory and inconsistent with the nature of the Plaintiffs injuries as described by all the doctors who gave

evidence. These notes are of no evidential value and should not have been used by the Trial Judge to detract from the weight

of the Plaintiffs testimony.”

I then turn to consider the alternative claim that the letter was admissible as evidence of the policy of the bank. I leave aside the

question of whether the policy of the bank was admissible at all against the plaintiff. Counsel for the plaintiff strongly disputed its

relevance. In general, I tend to agree with him. I do not think the defendants were entitled to deploy as against the plaintiff any

policy of the bank of which she was not shown to be aware. However, there is a simpler and more basic evidential rule which, in my

opinion, should have led to the exclusion of the letter.

The letter is not a public document. Nor is it the type of private document, such as a will, a deed or a contract, which itself stands

as evidence of a legal transaction. Nor is it a business record, recording transactions carried out.

The purpose for which the defendants wished to use the letter was to show that Mr Cooney had stated that employees should assist

clients of the bank to evade tax. I ask how the letter could advance that objective. The answer is clear. Mr Cooney had allegedly

stated, in writing, in July 1990, that the bank had such a policy. A statement, whether oral or written, made on another occasion is

hearsay and, unless one of the exceptions to the hearsay rule applies, it is inadmissible. It is no answer to call the author of the

written statement and ask him to verify it. He is then being asked to give evidence of his own statement on an earlier occasion. I test

this conclusion by asking whether he would have been permitted to give evidence of an earlier oral statement made to persons other

than the plaintiff. He could, of course, have been asked to state whether he had communicated such a policy to staff. He was never,

in fact, asked any such question. Thus, Mr Cooney gave no positive evidence that the bank had a policy of assisting its clients to

evade payment of tax. He was merely asked to produce an earlier written statement of his own. This was hearsay evidence.

In my opinion, these are basic propositions of our law of evidence. They receive confirmation from the following passage from

Archbold, Criminal Pleading Evidence and Practice (2003) paragraph 9-2, page 1165:

“Having regard to the definition of hearsay, any statement in a document will be hearsay and inadmissible if the purpose for

which it is sought to tender it in evidence is to rely on the truth of the statement, unless the document can be brought within

one of the exceptions to the hearsay rule.”

The authors cite bankers’ books admissible by virtue of the Bankers’ Books Evidence Acts as a well-known exception to the rule.

Mr Cooney, by being asked to verify that he had written the letter, (which he had never sent), was being asked to give evidence of

his own earlier statement to unidentified persons. Mr Cooney’s evidence of his own earlier statements contained in the letter was, in

my view, inadmissible in principle. The reasons are encapsulated in the following statement taken from The Law Reform Commission

Working Paper on “The Rule against Hearsay” (Working Paper No. 9 --- 1980), page 50:

“The hearsay rule excludes the out-of-court statements of witnesses insofar as they are tendered as evidence of the facts

asserted. However, such a statement may also be relevant to the credibility of the witness in that it reveals consistency or

inconsistency with his testimony in court. But even if it is sought to be proved only for this limited purpose, it may be excluded

by the rule against self-corroboration, sometimes called the rule against narrative. According to this, a witness may not give

evidence that, on a past occasion, he made a statement consistent with his testimony in court and other witnesses may not

be called to prove that he made any such statement. Any previous statement inconsistent with his testimony in court may be

proved but such a statement may only be used to discredit the witness’s sworn testimony and is not evidence of the facts

asserted in it.”

The rule against self-corroboration has been modified in England by the Civil Evidence Act, 1968. Prior to that, the statement of

Holmes J in Coll (1889) L. R. Ir. 522 that “evidence of a witness cannot be corroborated by proving statements to the same effect

previously made by him,” was regarded in England as a correct statement of the law. (see Phipson on Evidence, 14th ed. Par 12-56).

If Mr Cooney could not give evidence of the letter to corroborate evidence actually given by him, a fortiori he could not give such

evidence in isolation and, in effect as the sole evidence of the alleged fact.

I am, therefore, satisfied that the letter should not have been placed before the jury on the primary basis claimed until it had been

established that the plaintiff had received it and should not have been admitted in evidence on the second claimed basis. The letter

was, therefore, improperly admitted into evidence.

That conclusion, however, will not lead automatically to an order being made for a new trial. Both the Chief Justice and Geoghegan J,

in their judgments, refer to Order 58, rule 7(2) Of the Rules of the Superior Courts, which provides:

“A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or

because the verdict of the jury was not taken upon a question which the judge of the trial was not asked to leave to them,

unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial;

and if it appears to such court that such wrong and miscarriage affects part only of the matter in controversy, or some or

one only of the parties, the Supreme Court may give final judgment as to part thereof, or as to some or one only of the

parties, and may direct a new trial as to the other part only, or as to the other party or parties.”

The principal case cited on this issue is Kelly v Board of Governors of St. Laurence’s Hospital [1988] I.R. 402, which is not an entirely

satisfactory authority. Only Finlay C.J. and Henchy J, in their dissenting judgments referred to the rule. Both were of opinion that the

trial judge had misdirected the jury in failing to refer, in his charge, to the evidence of the defendant’s expert. Henchy J additionally

considered that he had misdirected them as to the law. Walsh J, with whom Hederman J agreed simply stated, at page 412, that the

failure to refer to the expert’s evidence “was not capable of leading to an injustice on the particular facts of this case.” McCarthy J

expressed a similar view. Nonetheless, Henchy J undoubtedly correctly summarised the effect and meaning of the rule, when he said:

“It should be noted, however, that the requirement is a substantial wrong or miscarriage "in the trial", not "in the result of the

trial". A new trial, therefore, may be ordered when there has been a substantial wrong or miscarriage, be it substantive or

procedural, in the trial.”

In spite of the first sentence in this passage, he went on to say:

“I find it impossible to say that there may not have been a different result if the judge had directed the jury's attention to Dr.

Malone's evidence.”

The wrong or miscarriage is not, therefore, unconnected with the result of the trial. It must be something liable to contribute to a

miscarriage in the result.

In the present case, it is necessary to consider whether, in the context of the trial as a whole, “some substantial wrong or

miscarriage has been …… occasioned in the trial” by reason of the “improper admission” of evidence of the letter.

A number of matters lead me to the conclusion that the Court should not order a new trial in the present case.

The trial was of exceptional length: twenty nine days. Evidence relating to the letter was confined to two or three of these. The

plaintiff was cross-examined about it on day 4. The gist of the cross-examination was that she had received the letter, which she

strenuously denied. In this she was clearly vindicated. When the defendants sought to lead evidence about the letter, counsel for the

plaintiff intervened to demand that it be proved that it had been sent. Counsel for the defendants posed a question suggesting that

the letter had been sent as part of the “normal course,” only to be told that it was not. A cogent explanation was given: the

intervention of the Gulf War. It seems to me that this sequence was as likely to redound more to the discredit of the defendants than

that of the plaintiff.

The learned trial judge then specifically warned the jury, “in the strongest possible terms” that the plaintiff had been cross-examined

on the basis that she had received the letter and that they should now view that cross-examination “only in the light of the fact that

she never got this letter…”

I am, of course, of the opinion that the learned trial judge should not then have admitted the letter on the apparent alternative basis

that it was evidence of the policy or practice of the bank. In this connection, it is worthwhile noting that the learned trial judge drew

a distinction, in his charge to the jury between the policy of the bank and the plaintiff’s awareness of it:

“So I want to warn you that I don’t think it helps over much to concentrate on the actual merits or demerits of this product

[the CMI Portfolio Bond] unless you are satisfied that Beverly Cooper-Flynn knew exactly where she was going. If she knew

that this was a red hot product that was going to facilitate tax evasion, then by all means take a long hard look at the product

and blame her for what she knew. What I am saying to you is that it seems to me that it is only fair that she should not be

blamed and carry the responsibility for what may have happened in the boardroom of the bank.”

It must also be remembered that a principal plank of the defendants’ defence of justification was that the plaintiff had assisted the

third-named defendant, who was identified by name early on in the story, to evade tax. The evidence of this defendant and that of

his daughter could be said to have been at least as prejudicial to the plaintiff as the contents of the letter. Yet the jury were required

to and did in fact consider this defendant’s defence on its own separate merits and distinguish it from that of the other unnamed

investors. They rejected that evidence.

Most crucially, the jury had the evidence of the other four investors whom the plaintiff was alleged to have assisted to evade the

payment of lawful tax in addition to the cases of two other investors which were raised with the plaintiff in cross-examination. I

propose to refer to the principal features of this body of evidence. It is right, of course, to say that the plaintiff strenuously denied

having advised any investor to evade tax.

Mr Patrick Duff was a farmer and the owner of a licensed premises, hardware and other business in Bailieborough, County Cavan. He

had built up very substantial savings. He had £174,000 in a “bogus” non-resident account, with a false English name and address, at

the Bailieborough Branch of National Irish Bank. From the end of 1991, he met the plaintiff regularly for advice on his investments. She

knew about the account just mentioned. He said he was thinking of availing of the tax amnesty announced on 25th May 1993. The

plaintiff said: “Oh, no, no, why avail of the amnesty, why lose 15% of your earned money when you can put it into a fund that I will

manage for you.” She advised him that, if she left the money in the account where it was, the revenue would find out. If he invested

the money in the CMI portfolio, the money in the account would go to a numbered account in the Isle of Man and his name would

never appear on any document. In 1996, Mr Duff invested £168,000 from the account in the CMI portfolio.

Mrs Joy Hall lived in Monaghan and had businesses in Monaghan and Enniskillen. She held some building society accounts, in respect of

which she had not declared the interest to tax. The plaintiff advised her to place the money in a CMI portfolio account, which would

be in the Isle of Man, under a number and her name would not appear on it. Confidentiality would be complete and the Revenue would

not know of it.

Mr Sean Roe was a coach operator from Shercock, County Cavan. He had also engaged for many years in buying and selling a variety

of articles. He kept his money in “various accounts,” including in National Irish Bank He had failed to return his earnings to the

revenue. He became increasingly concerned that he was doing wrong and wanted to have the matter of his taxes “tidied up.” He was

introduced to the plaintiff around the middle of 1993. He told her that he had “monies all over the place and that [he] was a bit

unhappy that they were undeclared monies, and [he] was unhappy that the tax man was going to catch up with [him].” The plaintiff

suggested an “offshore investment” and said that “the money would never be declared to the Revenue, the Revenue would never

find out about it, that it was as safe as houses.” Mr Roe suggested availing of the tax amnesty, but the plaintiff said there was no

need to go for the amnesty as the money would be safe. She said Mr Roe had worked hard for his money and there was no point in

giving away any of it.

Mrs Joan Quigley was a farmer’s widow living in Dundalk. Her late husband had had an undeclared bank account in Newry, which she

inherited. In 1993, she heard of the impending tax amnesty. Through the National Irish Bank, she was introduced to the plaintiff,

whom she met several times. Mrs Quigley told her about the undeclared money in the Newry bank account and asked about the

amnesty. The plaintiff advised against it but said “to go into the CMI scheme.” She said it was perfectly safe. Mrs Quigley would have

a number and “how could the Revenue trace a number?”

All of these witnesses were cross-examined in great detail. There was at least one unexplained inconsistency in relation to Mrs

Quigley, who said she had received the plaintiff’s advice against the amnesty in April 1993, whereas it was not announced until 25th

May of that year. Mrs Quigley said that she had seen some advance publicity.

The plaintiff was also cross-examined about dealings with the affairs of two other investors. She had dealt with a publican, who said

he had £30,000 sterling in cash, £26,000 on deposit in the Isle of Man and a deposit of IR£46,000 in his wife’s maiden name. It was

put to her that these three circumstances should have caused alarm bells to ring suggesting that these funds were not properly

declared. She maintained that she thought it perfectly possible that a publican in Naas would have accumulated £30,000 sterling in

cash from his business there.

She was also cross-examined about the case of a £113,000 sterling policy, sold by the plaintiff, to an investor who died. The monies

were acknowledged by the family of the deceased to represent undeclared funds. The plaintiff accepted that she had made no

inquiries from the manager at the local National Irish Bank as to whether he knew that the funds were undeclared. She was strongly

pressed on the fact that no action appeared to have been taken to report the matter to the Revenue. She said that she told her

immediate boss, but agreed that she had taken no other action.

In my estimation, the totality of this evidence was sufficient to nullify any residual possible prejudicial effect of the wrongly admitted

letter. All four of the individual investors, who gave evidence, described in detail their dealings with the plaintiff. The jury were

entitled to consider that they painted a consistent picture of the plaintiff’s response, when confronted with problems of clients with

undeclared funds. The jury were entitled to think that there was a common thread running through the three cases in which clients

consulted the plaintiff about the tax amnesty.

In view of the explicit instruction of the learned trial judge that the plaintiff had not received the letter, I do not consider that,

assessed in the light of all the evidence before the jury, it can have had a significant impact on the jury’s decision to answer the

second question as they did. I do not think there was a “substantial wrong or miscarriage.” I would not direct a new trial. For all

these reasons, I agree that the appeal should be dismissed.