GRIFFITHS V TUI [2023] 3 WLR 1204 (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule... Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to crossexamine at length or where…the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule. (viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.” The examples given by the Court of exceptions to the rule that a witness whose evidence is to be challenged must be cross examined about that challenge are where: i) Where the challenge to evidence is not significant; ii) Where the evidence is manifestly incredible; iii) Where there is no reasoning behind the evidence at all; iv) Where the witness has made a mistake which is obvious on the face of the report; v) Where the evidence of fact does not support the assumptions on which an expert has based his or her evidence; vi) Where the witness has been given the opportunity to respond to the challenge and there is no need for him or her to attend court for cross examination; vii) Where an expert has not complied with the particular procedural rules on the provision of expert evidence contained within Part 35 of the Civil Procedure Rules. 4. COMMENT The decision of the Supreme Court in Griffiths is a reminder of what the civil justice system is intended to do – it is there to do justice between the parties. It is not open to advocates, even working within an adversarial context, to ambush the opposing party, and fairness demands that any criticisms to be made of witnesses should be put to them clearly so that they may answer them. It is, otherwise, impossible to know whether the witness might have had a completely satisfactory answer to any criticisms made of him or her. It is suggested that whilst this judgment was founded on the English procedural rules regarding witnesses, it is of interest and relevance to all lawyers in that it emphasises again that the underpinnings of a properly
RkJQdWJsaXNoZXIy MTE4NzM5Nw==