[2024] UKUT 22 (AAC)

The appellants complain that two witnesses (James Strathearn and Hana Simpson) had access to material (documents and witness statements) which put them in a position to tailor their evidence and prepare for cross-examination in a manner not ordinarily available to such witnesses with the result that the public inquiry was conducted unfairly contrary to the principles of natural justice and article 6(1) of the European Convention on Human Rights. There is no substance to that complaint. There was nothing about the evidence of Strathearn and Simpson that rendered the conduct of the public inquiry unfair.

There is no rule against witnesses being given access to case materials before they come to give their evidence or discussing the evidence with other witnesses: Evidence (Scotland) Act 1840, s 3; Hughes v HM Advocate 2023 JC 40, 44 at [19]-[20].

The modern trend towards use of witness statements or affidavits as evidence-in-chief in civil proceedings specifically contemplates that witnesses will have access to the written evidence of other witnesses before they give their own oral evidence. It is a move away from “trial by ambush” and allows a witness to give a considered response to points which may be made against him and the evidence given by others: Luminar Lava Ignite Ltd v Mama Group plc 2010 SC 310, 327 at [72]. Consistent with that aim, in the guidance issued by the Commercial Judges of the Court of Session on the use of signed witness statements or affidavits (March 2012), it is explained that: “The statements of a party’s other witnesses or of another party’s witnesses may be disclosed to a witness after the exchange of statements between the parties.”

James Strathearn gave a statement at interview on 21 March 2022. In those circumstances, it was perfectly appropriate for him to be given access to, among other things, the statements of other witnesses. It does not matter whether that was done because he was treated or described as a participating party or a witness. The DTC bears no responsibility for the fact that Strathearn may have shared that material with Simpson.

In any event, the appellants were aware that Strathearn and Simpson had had access to such material before they came to give oral evidence. The matter was the subject of specific discussion in the early part of Simpson’s evidence [see the transcript in the bundle of documents for the appeal at p 1270] and before Strathearn came to give oral evidence. Despite that, there was no objection to those witnesses being allowed to give evidence on the basis of the complaint now made and, more importantly, the appellants had the opportunity to cross-examine Strathearn and Simpson and to invite the DTC to reject their evidence on the grounds that it had been tailored by reference to material which they had had available to them.

For all the foregoing reasons, Mr Tosh submitted that the appeal should be dismissed.