The High Court has refused ACC Bank’s application to prevent plaintiffs in test cases over its Solid World Bond 5 investment product from calling four additional investor witnesses.
In a judgment delivered on 11 October 2012, Mr Justice Charleton said the bank had not met the heavy burden required to exclude factual evidence before trial. The cases were listed for trial in November 2012 and were to be heard with three other actions as test cases. The judgment said about 200 other plaintiffs had agreed that the outcome would determine their claims, subject to possible separate trials on unusual facts.
The underlying claims allege that the product was marketed attractively without proper warnings about risk and, for most plaintiffs, on a borrow-to-invest basis. Those allegations were not decided in this application.
ACC Bank sought to bar four further witnesses, who were plaintiffs in related actions, arguing their evidence would be inadmissible similar-fact evidence. The court noted that the test plaintiffs’ claims concern what bank officials told them and that the bank also intended to call evidence about how the product was marketed and how its officials were trained. It said accounts from other investors could be relevant to whether there was a pattern in those dealings.
Mr Justice Charleton held that the key question was relevance: whether evidence, if accepted, could help prove or disprove a fact in issue. He said the assessment of the proposed evidence belonged to the trial judge, who would have a fuller picture of the issues and evidence as the trial developed. A court could exclude evidence in advance in an extreme case, such as where it was plainly irrelevant or of no possible assistance, but that threshold was not met here.
The ruling did not determine the investors’ underlying claims or decide what weight the additional witnesses’ accounts should receive. It refused the bank’s motion and directed that redrafted statements for the additional witnesses be provided within two days. If the bank wished to call concise evidence in reply, it had to provide statements to the plaintiffs by 25 October 2012.