Hostile Witness in UK Law

This took place according to the abbreviated procedure which now prevails in the Commercial Court. Instead, the judge was supplied with what amounted to an extensive written note of opening; a skeleton argument by the defendants; and the plaintiffs' and the defendants' witness statements; and bundles of experts' reports. The judge remarked that it was a matter of weight and, therefore, comment. In fact, so far as we can tell, the question of admissibility was never thereafter mentioned.

As pointed out by McCowan L.J. during argument, if this action had proceeded in accordance with "old fashioned" civil procedures the plaintiffs would have pleaded and opened their three suggestions as to the way in which the crew could have stolen the missing cargo without detection. They would have called oral evidence as to facts, including the evidence of Captain Bellucci. Such a submission would, as it seems to us, have been irresistible.

We believe that this is a common occurrence in civil litigation and unobjectionable in principle, provided that care is taken to avoid surprise and hence injustice. We adopt the reasoning of the British Columbia Court of Appeal in Cariboo v Carson Truck Lines 32 D.L.R. (2d) 36 (1961), and in the English cases there cited.

From this must be distinguished the situations where a party wishes to assert that the evidence given in chief by a witness whom he has called is not only wrong, but is wrong on purpose. The most obvious instead is one where the witness has turned coat and has deliberately failed to come up to proof. (See Ewer v Ambrose (1825) 3 B. & C. 246; The Criminal Procedure Act 1865, section 3, applied by the Civil Evidence Act 1968).

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury.

That decision is now 70 years old and we cannot say that Mr. Justice Darling's counsel of prudence has become a rule of law. Nor do we seek to lay down any rule of practice for the future. This is an unusual case and we are reluctant to make it the basis for any general rule. Nonetheless, this case does illustrate very powerfully why it is necessary for the trial judge to make certain that the wife understands her position before she takes the oath.

That is to the effect that the lie must be deliberate and must relate to a material issue. The jury must be satisfied that there is no innocent motive for the lie and should be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame, or out of a wish to conceal disgraceful behaviour. In regard to corroboration, the lie must be established by evidence other than that of the witness who is to be corroborated.