Burnell v British Transport Commission

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE DENNING,LORD JUSTICE HODSON,LORD JUSTICE MORRIS
Judgment Date01 Dec 1955
Judgment citation (vLex)[1955] EWCA Civ J1201-3

[1955] EWCA Civ J1201-3

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Denning

Lord Justice Hodson and

Lord Justice Morris

Between
Burnell and
Appellant
British Transport Commission
Respondents

Mr H. I. NELSON. Q.C. and Mr D. MEURIG EVANS (instructed by Messrs Murray, Napier & Co., Agents for Mr W. Francis Ryan, Cardiff) appeared on behalf of the Appellant.

Mr NORMAN RICHARDS, Q.C. and Mr H.W. SABIN (instructed by Mr M.H.B. Gilmour) appeared on behalf of the Respondents.

LORD JUSTICE DENNING
1

A point of practice has arisen because Mr Anzani, a witness, was called for the Plaintiff, and then Counsel on the other side, rising to cross-examine him, had a written statement in his hands on which he cross-examined Mr Anzani. He asked him whether he had not given a statement beforehand to the Transport Executive and had signed it, and he asked him whether he had not said certain things in that statement, to which the witness then agreed. The question is (and it was the question which Mr Justice Sellers had to decide) whether, in those circumstances, the examining Counsel had a right to call for the statement and to insist on it being put in evidence. Mr Justice Sellers ruled that he had that right. It seems to me that Mr Justice Sellers was correct, because, although this statement may well have been privileged from production and discovery in the hands of the Transport Executive at one stage, nevertheless when it was used by cross-examining Counsel in this way, he waived the privilege, certainly for that part which was used; and in a cane of this kind, if the privilege is waived as to the port, it must, I think, be waived also as to the whole. It would be moot unfair that cross-examining Counsel should use part of the document which was to his advantage and not allow anyone, not even the Judge or the opposing Counsel, a sight of the rest of the document, much of which might have been against him. So it seems to me that the ruling of Mr Justice sellers was correct. It was in accordance with the practice as I have always understood it. I would like just to add that, since the Evidence Act, 1938, the document, once it was legitimately in the presence of the Court, would be admissible as evidence under that Act also. I think, therefore, that Mr Justice Sellers was right and that we should look at the document, just as he did.

LORD JUSTICE HODSON
2

I agree on the question of waiver and...

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