THE SOCIETY OF LLOYD'S v SIR WILLIAM OTHO JAFFRAY BT (2000)

QBD Commercial Court (Cresswell J) 9/6/2000

EVIDENCE - CIVIL PROCEDURE - CPR

ADMISSIBILITY : SERVED WITNESS STATEMENTS : HEARSAY EVIDENCE : PRE-TRIAL DIRECTIONS : POWER OF COURT : WITNESSES : ORAL EVIDENCE : TRIAL : CIVIL PROCEDURE RULES 1998 SI 1998/3132 : CPR PART 32 : CPR 32.1 : CPR 32.5 : CPR 33.4 : JUDICIAL DISCRETION

Where a party decided not to call a witness whose statement had been served, prompt notice should be given to all other parties setting out whether the witness statement would be put in as hearsay evidence. If not, under the Civil Procedure Rules 1998 any other party was allowed to put it in as hearsay evidence.

Application for an order requiring the opposing party to call witnesses at trial so that the applicant could cross-examine them. The application arose in the course of the trial of the threshold fraud point in the continuing litigation between Lloyd's of London and the Names (see, inter alia, Society of Lloyd's v Sir William Otho Jaffray (1999) LTL 18/6/99). All the witnesses, save one, faced allegations of fraud. Their witness statements had been served in accordance with pre-trial directions but Lloyd's had decided not to call them. The Names argued that under Part 32.1(1) Civil Procedure Rules 1998 SI 1998/3132, the court had a discretion to require evidence to be adduced which a party was not minded to call.

HELD: (1) Where a party decided not to call a witness whose statement had been served, prompt notice should be given to all other parties setting out whether the witness statement would be put in as hearsay evidence. If not, CPR 32.5(5) allowed any other party to put it in as hearsay evidence, which reversed the position under the former rules. (2) CPR 32.1 had to be read in the light of CPR 32.5 and CPR 33.4 (power to call witness for cross-examination on hearsay evidence). However, there was nothing in the new rule which changed the basic rules of the laws of evidence, which were still in force (McPhilemy v Times Newspapers Ltd & Ors (2000) EMLR 575. (3) 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). There was no obligation to call witnesses. It was counsel's duty to decide what evidence was called and the order in which it was called. (4) The instant court had no jurisdiction to make the orders sought. Any question as to the inferences to be drawn from Lloyd's decision not to call the witnesses would be considered carefully in the eventual judgment.

Application dismissed.

Richard Jacobs QC instructed by Freshfields for Lloyd's. Vincent Nelson instructed by More Fisher Brown on behalf of various names. Sir William Jaffray appeared in person. Mr Freeman of Grower Freeman & Goldberg on behalf of various names.

TLR 3/8/2000 : LTL 29/9/2000

Judgment Official

Document No. AC8001590