Is there an obligation to put in cross-examination that the witness is lying?

Professor Hampel has been telling me recently that the rule in the House of Lords’ judgment in Browne v Dunn (1893) 6 R 67 is much mis-understood by advocates and decision makers alike.  Another judge apparently gives a talk to the participants in the Victorian Bar’s readers course each intake emphasising the narrowness of the obligation.  Good advocates and judges, it appears, find unnecessary and inelegant recitations of strings of ‘I put it to yous’ as irritating as good advocates find irritating the suggestions from not so good decision makers that matters which were not required to be put to a witness must be put, or, after the event, ought to have been put.

The general tenor of these teachings is that there is an obligation to put matters to opposing witnesses less often than is sometimes assumed, or that a counsel of caution in putting things to witnesses to be on the safe side of the rule has its forensic downsides. As I understand it, the perception is that some counsel see the need to lay out their whole case to opposing witnesses to give them an opportunity to comment on it, regardless of whether the witness is already well appraised by witness statements or documents of the cross-examiner’s client’s case or whether the matters put in fact contradict or tell against any evidence of the witness.

Professor Hampel’s half-serious theory about the confusion flowing from the decision — that no one has ever read it — may be correct.  Someone else seems to have had the same concern, having set up a website devoted solely to putting the hitherto obscurely reported and difficult to find decision on the net.  (And, what do you know? The case is actually about relations between solicitors and clients which is principally about privilege and the liability of a solicitor to action for words spoken between solicitor and client.)

But there is one aspect of the rule which repeatedly attracts criticism when it is not complied with.  There is an obligation to squarely put to a witness in cross-examination allegations of dishonesty (or, to use a precise synonym, fraud). Lord Herschell said at 70-71:

‘it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.  My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’

The High Court reiterated the rule recently in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 at [71].  And the Victorian Court of Appeal’s latest reiteration of the rule may be found in Food and Beverage Australia Limited v Andrews [2017] VSCA 258 at [171]:

‘The rule in Browne v Dunn generally requires a party to give appropriate notice to the other party, and that party’s witnesses, of any imputation intended to be made against them about their conduct relevant to the case or their credit.[88]  It applies also to require a party to put to a witness any material upon which the party proposes to rely to contradict the evidence of that witness.[89]  A corollary of the rule is that judges should generally not make adverse findings about a party or witness where the rule has not been followed.[90]’

Particular scorn is reserved for those cross-examiners who are ‘willing to wound but afraid to strike’, to re-use the Alexander Popism beloved of the judges who dish out this scorn: Reid v Kerr (1974) 9 SASR 367 at 374.  The scorn is of two forms: first, where the cross-examiner does not come out and put squarely the accusation that their questioning was obviously logically leading up to, for fear that it might be countered by the witness, but then sticks the boot in on that question in final submissions, and secondly where the cross-examiner is unwilling to put the allegation squarely for fear of not having a proper factual foundation and yet seeks to circumvent her ethical obligations by insinuating it (as in Green v Emergency Services Telecommunication Authority [2014] VSCA 207).

The English application of this obligation is much discussed in Howlett v Davies [2017] EWCA Civ 1696.  In this case it was a defendant who was making the serious allegations against the plaintiffs, so it was a little unusual since most of the cases involve allegations of wrongdoing by plaintiffs against defendants.  Different pleading rules applied to statements of claim and defences and that was important: see [22].

The forensic desirability in England of defendants alleging fraud has been increased by costs rules in the increasingly radical civil procedures of the United Kingdom which mean that unsuccessful plaintiffs in personal injuries actions do not have to pay successful defendants’ costs except in cases of ‘fundamental dishonesty’.

In Howlett v Davies, a couple alleged that they were passengers in the defendant’s vehicle and sustained injuries when she negligently reversed into a parked car.  The driver’s liability insurer was a defendant along with the driver.  The insurer defended on the basis that the plaintiffs were put strictly to their proofs that the collision happened, that it was accidental, that the plaintiffs suffered injuries, and that the accident was their cause, ‘on a balance of probabilities, set against the backdrop of the following facts and/or contentions’ which were said to be suggestive of a contrived collision: see [6].

The defence expressly eschewed an allegation of fraud ‘at this stage’,  and it was never amended.  So the insurer defendant did not take up the evidential burden of establishing fraud, putting the focus on the plaintiff’s burden of proof in what it said was the inherently unlikely version of events put forward by them. This was a course approved of and counselled by the Court of Appeal in Kearsley v Klarfeld [2005] EWCA Civ 1510 at [41] – [47].

The plaintiffs applied unsuccessfully to strike out the defence, essentially arguing that this was an impermissible circumvention of the obligation to have a proper factual foundation for pleading fraud.

The insurer did not cross-examine the plaintiffs so as expressly to allege that their claim was fraudulent, but did put to them that their evidence verifying the facts pleaded in their claim was ‘not true’.  In closing submissions, however, the insurer went to town, saying that the trial judge should find either that the plaintiffs were not in the car at the time of the accident or, if they were, they did not suffer injury as a result, and that ‘every detail about the alleged accident was the stuff of fantasy and liable to be shown to have been a lie’.

The trial judge dismissed the plaintiffs’ claims saying he simply did not believe either of the plaintiffs or the driver defendant. He said he had made plain to the plaintiffs that he was considering making findings that the facts put forward by them were untrue and/or exaggerated [and so complied himself with the rule in Browne v Dunn, which binds judges as much as advocates: Bale v Mills (2011) 81 NSWLR 498 at [64]], and pointed out that the plaintiffs’ counsel had taken the (to my mind extraordinary) step of asking his clients in re-examination whether their evidence in cross-examination had been true, suggesting that whether the evidence was truthful was well understood to be in issue.

The trial judge expressly eschewed making a finding of fraud against the plaintiffs on the question of liability, simply finding instead that the plaintiffs had not satisfied their burden of proof because he did not believe their testimony.

But then his Honour determined costs on the basis that the claim had been fundamentally dishonest, upon the invitation of the insurer.  So the defendant did end up expressly alleging in the costs application that the claim itself had been ‘fundamentally dishonest’, presumably on the basis that that was an inference which flowed from the principal findings of the trial judge which provided the factual foundation necessary to advance that claim.

The Court of Appeal said it was all good.  It was not necessary to use any particular language in putting to a witness that their evidence was dishonest and the matters by reference to which the insurer ended up asking the Court to find dishonesty had been pleaded by the defence as circumstances ‘against the backdrop’ of which it put the plaintiffs to their proofs, and those circumstances had been traversed in cross-examination sufficiently so as to give the plaintiffs the opportunity to explain away those circumstances.

The Court concluded:

‘First, where a witness’ honesty is to be challenged, it will always be best if that is explicitly put to the witness. There can then be no doubt that honesty is in issue. But what ultimately matters is that the witness has had fair notice of a challenge to his or her honesty and an opportunity to deal with it. It may be that in a particular context a cross-examination which does not use the words “dishonest” or “lying” will give a witness fair warning. That will be a matter for the trial judge to decide. Secondly, the fact that a party has not alleged fraud in his pleading may not preclude him from suggesting to a witness in cross-examination that he is lying. That must, in fact, be a common occurrence.’

See also the following English cases in relation to the obligations of those alleging fraud: Three Rivers DC v Bank of England (No 3) [2001] UKHL 16, [2003] 2 AC 1; Vogon International Ltd v Serious Fraud Office [2004] EWCA Civ 104, Francis v Wells [2007] EWCA Civ 1350, Haringey v Hines [2010] EWCA Civ 111, Abbey Forwarding Ltd v Hone [2010] EWHC 2029, Haringey LBC v Hines [2010] EWCA Civ 1111, [2011] HLR 6 and Hussain v Amin [2012] EWCA Civ 1456.