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: Continue reading “Is there an obligation to put in cross-examination that the witness is lying?”