Burnell v British Transport Commission

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date01 December 1955
Judgment citation (vLex)[1955] EWCA Civ J1201-3
Date01 December 1955

[1955] EWCA Civ J1201-3

In The Supreme Court of Judicature

Court of Appeal


Lord Justice Denning

Lord Justice Hodson and

Lord Justice Morris

Burnell and
British Transport Commission

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.


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.


I agree on the question of waiver and...

To continue reading

Request your trial
29 cases
  • Barbara Lim Cheng Sim v Uptown Alliance (M) Sdn Bhd (No 2)
    • Malaysia
    • High Court (Malaysia)
    • 1 January 2014
  • Dusun Desaru Sdn Bhd v Wang Ah Yu
    • Malaysia
    • High Court (Malaysia)
    • 1 January 1999
  • Great Atlantic Insurance Company v Home Insurance Company
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 January 1981
    ...or could fairly and effectively exercise any discretion designed to put the clock back and to undo what has been done. 25 In Burnell v. British Transport Commission (1956) 1 Queen's Bench 187 counsel for the defendant cross-examining a witness put to the witness certain observations made by......
  • R v Seaton (Oral)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 13 August 2010
    ...essential question is whether the partial disclosure has actually led to unfairness or prejudice. Thus, for example, in Burnell v BTC [1956] 1 QB 187 a cross examiner who put to a witness part of a previous statement he had made to his solicitor could not resist disclosing the whole of the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT