Judge not bound to accept "unchallenged" evidence
30 September 2015
Various claimants v Giambrone & Law (a firm) & ors  EWHC 1946 (QB), 7 July 2015
A judge is not bound to accept as a matter of fact general evidence in a witness statement that has not been specifically challenged on cross-examination.
This was a sample of claims in a complex multi-party action by English and Northern-Irish buyers, in the English High Court, against their Italian lawyers for allegedly negligent advice given about failed off-plan property developments in southern Italy.
This article focuses on Foskett Jꞌs comments on the assessment of unchallenged evidence.
Unchallenged evidence – the general rule
It is a well-established principle that, in general, a party must challenge in cross-examination the evidence of any witness of the opposing party if he/she wishes to argue that evidence given on a particular issue should not be accepted (Browne v Dunn (1894) 6 R. 67, HL). Failure to cross-examine a witness on a particular important point may lead the court to infer that the crossexamining party accepts the witnessꞌ evidence, and it will be difficult to suggest that the evidence should be rejected.
The evidence in this case largely focussed on the property developments that were of direct concern to the claimants, however, other more general evidence was also given in one of the defendants' witness statements. This general evidence suggested that many other similar property developments had been completed in the region successfully in recent years, with few of the problems that arose in this case.
The defendants, appearing to rely on the rule in Browne v Dunn, argued that the general evidence was unchallenged by the other side. The judge rejected the contention that he was necessarily bound to accept evidence that had not been specifically challenged by the other side in cross-examination.
Assessment of unchallenged evidence – the judge's observations
Matters outside scope of dispute
Foskett J found that the "unchallenged" evidence concerned matters that were outside the scope of the proceedings. The evidence related to other property developments, not the developments that were the subject of the proceedings. The judge was in no position to decide whether or not the evidence was correct. There had been no investigation into these points to see if the evidence was correct which meant that, in reality, there had been no way in which the evidence given could have been meaningfully cross-examined.
Proportionality and credibility
Had every potential issue of fact or opinion in dispute been the subject of sustained challenge in cross-examination, the trial would have taken much longer than it did, with the risk that the increased associated costs would not be recoverable by the claimants even if they succeeded on the merits of the case (because of uncertainty over the defendants' insurance cover), or that the individual defendants could be held personally liable for the costs. A "measured and proportionate" view must be taken and the general credibility and reliability of a witness who says something particularly, though not exclusively, of a general and expansive nature, which is "unchallenged" needs to be taken into account when assessing the value of that evidence.
Meaning of documents
Where the meaning of a document or a series of documents is in dispute, interpretation is rarely, if ever, helped by cross-examining the drafter of the document(s) or by seeking the potentially self-serving opinion of someone closely associated with the importance of the meaning of the document(s). The answer is normally found by looking at the words used in context. Equally, where inferences are open to be made on the basis of the totality of the evidence, the mere fact that a particular inferred conclusion was not put to a witness does not mean that it has been accepted by the other side, or that the judge must accept it.
Judge not bound to accept unchallenged evidence
Simply because it was not specifically put to a witness that what was said in his witness statement was untrue (or misguided) does not mean that a judge is bound to accept what was said. It is important to be fair to a witness, particularly if the honesty and integrity of awitness is being challenged and there may be other areas of his or her evidence that need to be challenged headon, "but the days of the "I put it to you" cross-examination on other matters have long since gone".
In any event, it should be borne in mind that, where the court is assessing the "collective position" of "the firm" or "the practice" on an issue, putting matters to an individual, even a senior person, will not necessarily assist the court in deciding on that issue.
Separately, Foskett J noted that, as in any case, he did not see it as his duty either to accept the whole of a reputable expertꞌs opinion, or not to accept it at all because "as with any witness, an expert can be right about most things but wrong on others".
Comment: This general rule in Browne v Dunn is directed at advocates, rather than at judges, and should be considered in light of the "overriding objective" to deal with cases justly and at a proportionate cost under the Civil Procedure Rules. Foskett Jꞌs observations serve as a helpful reminder that the courts have discretion in their powers to control evidence depending on the circumstances of the case. In any event, from both a tactical and an ethical perspective, it remains a fundamental principle that all significant points that form a party's case must be put to the other side's witnesses in cross-examination.