Douglas& Ors v Hello Ltd & Ors

Where a party relies on a witness statement as hearsay and does not call its maker, CPR 33.4(1) permits the court to allow another party to call and cross-examine the maker on the statement’s contents. The power may apply even where the relying party did not prepare the statement and no formal hearsay notice was served. Cross-examination remains confined to the statement’s contents and subject to the court’s control of evidence. Witness statements are served because they are intended to be relied on at trial, rather than for tactical purposes. The overriding objective favours a practical approach with minimal technicality, while preserving the trial judge’s discretion to manage relevance, fairness, cost and inconvenience.

This was an appeal during an ongoing trial in the High Court, Chancery Division, from an order made by Lindsay J on 26 February 2003. The fourth and fifth defendants had obtained statements from Sue Neal, a former picture editor, and the claimants had obtained a supplementary statement from her. None of the parties had called her or put the statements in evidence.

At the close of the first and second defendants’ evidence, those defendants put both statements in as hearsay under CPR 32.5(5). The claimants then applied under CPR 33.4(1) to call Neal for cross-examination. Lindsay J granted the application. The central issue was whether CPR 33.4(1) applied where the party relying on the statements had not prepared or assisted in preparing them, and whether the court had jurisdiction to permit the proposed cross-examination.

1. Appeal dismissed with costs. Lord Woolf, the Lord Chief Justice, delivered the judgment. Lord Justice Kennedy and Lord Justice Scott Baker agreed.
2. The Civil Procedure Rules were intended to reduce technicality and promote the overriding objective. Part 32 gives the court wide powers to control evidence, including excluding otherwise admissible evidence and limiting cross-examination. Those powers do not permit the judge to search for evidence: the parties must produce the evidence on which they rely.
3. Witness statements are served because the serving party intends, at that stage, to rely on the witness’s evidence at trial. They are not served for tactical purposes. Service does not, however, make it compulsory to call the witness.
4. Under rule 32.5(5), where a party that served a witness statement neither calls the witness nor puts the statement in as hearsay, another party may put it in as hearsay. That was what the defendants did.
5. Rule 33.4(1) was expressed in sufficiently broad terms to cover the case. The defendants proposed to rely on hearsay evidence and did not propose to call Neal. The judge therefore had a discretion to permit the claimants to call her for cross-examination on the contents of her statements. The rule did not depend on the relying party having prepared or assisted in preparing the statements. The absence of formal hearsay notices did not prevent its application in the circumstances.
6. The power was limited to cross-examination concerning the statements’ contents. The trial judge retained substantial control over its extent and could prevent unreasonable use of the procedure. It was reasonable to allow Neal to give evidence because she had played a central role in relevant negotiations. Any additional inconvenience or expense could be controlled by the trial judge, including through video-transmitted evidence.

1. Court of Appeal (Civil Division) — Appeal dismissed with costs: [2003] EWCA Civ 332.
2. High Court of Justice, Chancery Division — Lindsay J granted the claimants permission to call Sue Neal for cross-examination on witness statements put in as hearsay. The order was made on 26 February 2003 during the continuing trial.