THE HONOURABLE MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- McGivern
88. I reject the proposition of law advanced by Ms Bolton. I am satisfied that the rule is accurately stated in Phipson on Evidence (12th edition, 2022, Sweet & Maxwell). In §12-12, the authors state (footnotes omitted): “In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases as it does in criminal. In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty submitting that the evidence should be rejected. Thus where, during trial, a witness has not been challenged as inaccurate, it was not appropriate for that evidence to then be challenged in closing speeches. However, the rule is not an inflexible one. For example, if there is a time-limit imposed by the judge on cross-examination it may not be practicable to cross-examine on every minor point, particularly where a lengthy witness statement has been served and treated as evidence-in-chief. Thus, in practice there is bound to be at least some relaxation of the rule. Failure to put a relevant matter to a witness may be most appropriately remedied by the court permitting the recall of that witness to have the matter put to him.” 89. I have also considered the Court of Appeal’s decision in Griffiths -v- TUI (UK) Ltd [2022] 1 WLR 973 which is referred to in this passage from Phipson . A point that I put to Ms Bolton in argument was that this rule was principally concerned with two things: fairness to a witness (i.e. not inviting a tribunal of fact to disbelieve his/her evidence if not challenged) and the fairness of the proceedings. It was not a rule that bound the tribunal of fact. 90. In an adversarial system, an obligation falls on the party to put questions on any significant factual issue upon which that party intended to rely to any witness of his opponent who could reasonably be expected to have relevant evidence to give on the point. A failure to observe these principles does not immediately put the tribunal of fact into a straitjacket, dictating what evidence must be accepted and what must be rejected. It may be that basic fairness would compel a Judge to refuse to condemn a witness as a liar if s/he had not been given an opportunity to address the challenge to his/her honesty. But that example is stark. In most other cases, the failure to put a relevant point to a witness is likely simply to be a factor in the Court’s overall assessment of the evidence. In Griffiths -v- TUI [81], Nugee LJ said this: “As a matter of basic principle it is the function of trial judges to evaluate all the evidence before them in reaching their conclusions on the factual issues. That includes deciding what weight should be given to the evidence. I see nothing in the authorities that suggests that that obligation to assess the evidence falls away if it is ‘uncontroverted’; uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole. Uncontroverted evidence may be compelling, but it may not be: it may be inherently weak or unhelpful or of little weight for other reasons.”
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