KA-2024-BHM-000008 - [2025] EWHC 2093 (KB)

The obligation to deal with a point in cross-examination if a party wishes to rely upon it

This is dealt with by the Supreme Court in the recent case of Griffiths v Tui (UK) Ltd [2023] UKSC 48; [2023] 3 WLR 1204 Lord Hodge DPSC said, at paragraph 70:

“In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

The rationale of the rule, i e preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

….

Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

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.

The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12-12 in sub-paragraphs which follow those which I have quoted in para 42 above. 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 cross-examine at length or where, as in Chen v Ng, 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….”