03 August 2000		1
Times Law Reports	Society of Lloyd's v Jaffray and Others

QUEEN'S BENCH DIVISION

Society of Lloyd's v Jaffray and Others

Before Mr Justice Cresswell

Judgment June 9, 2000

Evidence - party serving witness statement - court cannot order him to call witness

Any party can put witness statement in as hearsay evidence

Where a party, after serving a statement of his witness on the opposing party, in accordance with pre-trial directions, decided not to call that witness to give evidence, the court had no power to order the party to call his witness to give evidence in court.

However, it was open to any party in the litigation to put in that statement as hearsay evidence under rule 35.5(5) of the Civil Procedure Rules, which had reversed Order 38, rule 2A(6) of the Rules of the Supreme Court, under which no other party could put the evidence in at trial.

Mr Justice Cresswell so ruled in the Queen's Bench Division when refusing an application by Lloyd's names seeking an order against the Society of Lloyd's to call several witnesses, whose witness statements had been served pursuant to pre-trial directions, to give evidence in court at the trial in the action against Lloyd's for misrepresentation.

Mr Charles Aldous, QC, Mr Richard Jacobs, QC, Mr David Foxton and Mr Stephen Houseman for Lloyd's; Sir William Jaffray in person; Mr Simon Goldblatt, QC and Mr Vincent Nelson for privately funded members of the United Names Organisation; Mr Patrick Talbot, QC, Mr David Drake, Mr David Craig and Mr Giles Richardson for legally aided members of the United Names Organisation.

MR JUSTICE CRESSWELL said that the question was whether the court might require evidence to be adduced which the party was not minded to call.

It was clear from rule 32.2 that rule 32.1 was not merely an exclusionary rule. Paragraph 32.1.1 described rule 32.1 as a general power which was a far reaching one. Where a party decided not to call a witness, whose witness statement had been served, to give oral evidence at trial, prompt notice of that decision should be given to all other parties.

The party should make plain when he gave that notice whether he proposed to put, or to seek to put the witness statement in as hearsay evidence. If he did not put the witness statement in as hearsay evidence, rule 32.5(5) allowed any other party to put it in as hearsay evidence.

The names did not wish to put the witness statements in question in as hearsay statements. On the contrary, they sought an order requiring Lloyd's to call the witnesses identified, so that the names could cross-examine them.

Rule 32.5(5) reversed the position under the former rules, which provided that where a party served a witness statement and did not call the witness to give evidence, no other party could put the evidence in at trial: see Order 38, rule 2A(6) of the Rules of the Supreme Court.

Rule 32.1 had to be read in the light of rules 32.5 and 33.4.

03 August 2000		2
Times Law Reports	Society of Lloyd's v Jaffray and Others

The extent of the changes introduced by the Civil Procedure Rules was set out in the judgment of Lord Justice Brooke in McPhilemy v Times Newspapers Ltd (The Times March 2, 2000). In civil proceedings, the trial judge had no power to dictate to a litigant what evidence he or she should tender: see Tay Bok Choon v Tahansan ([1987] 1 WLR 413, 418).

The position was correctly summarised in Phipson on Evidence (15th edition (2000) paragraph 10-09): "In civil cases there is no obligation to call witnesses, even where an intention to call the witness is notified by disclosure of their evidence or by service of a hearsay notice."

It followed that the court had no jurisdiction to make the order sought.

Solicitors: Freshfields; More Fisher Brown; Grower Freeman &Goldberg.