Three Rivers District Council & Ors v Bank Of England

Under CPR 32.1(3), the court may limit cross-examination to what is necessary for a just determination of the relevant issues. The trial judge must make an independent case-management assessment, applying proportionality and the overriding objective; an honest estimate by counsel is relevant but not decisive. Appellate intervention is justified only where a relevant matter was omitted, an irrelevant matter considered, or the decision falls outside the generous range of discretion and is plainly wrong. A likely medical interruption may require the judge to fix a timely endpoint rather than leave the position unresolved. A witness cannot be made competent to address matters outside personal knowledge merely because a party does not call a more suitable witness.

The liquidators of Bank of Credit and Commerce International SA appealed from an order made by Tomlinson J in the Commercial Court during the long-running misfeasance claim against the Bank of England. The judge required the cross-examination of Brian Quinn to finish by 28 July 2005, limiting it to about seven weeks. He relied on proportionality, the limited utility of parts of the proposed questioning, and medical evidence indicating that Mr Quinn was likely to undergo heart surgery and be unavailable until January 2006.

The claim had previously been struck out by Clarke J, whose decision was reported at [1996] 3 All ER 558. The Court of Appeal initially dismissed the appeal, but the House of Lords allowed the further appeal in March 2001 and required the claim to proceed to trial, reported at [2003] 2 AC 1. The central issue was whether the case-management order was plainly wrong and unjust.

1. Appeal dismissed. The court unanimously upheld the order limiting Mr Quinn’s cross-examination to seven weeks, with re-examination to follow before the long vacation.
2. CPR 32.1(3) gives the court an express power to limit cross-examination. That power must be exercised consistently with the overriding objective in CPR 1.1 and 1.2. A decision made in the course of trial is a case-management decision within the trial judge’s discretion. The appellate court should interfere only where a relevant matter was omitted, an irrelevant matter was taken into account, or the decision fell outside the generous range of permissible decisions and was plainly wrong. The governing standard is justice. This approach was supported by Borealis AB v Stargas [2002] EWCA Civ 757, Royal & Sun Alliance v T&N Ltd [2002] EWCA Civ 1964 and Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446.
3. The trial judge was entitled, and in the circumstances required, to form an independent assessment of the time necessary for a fair trial. Counsel’s estimate was honest and professionally made, but was not determinative. The judge had read and heard the extensive material, understood the issues and the witness’s role, and had observed two weeks of cross-examination. Questions about documents which Mr Quinn had not seen, or matters outside his personal knowledge, could be inadmissible or unhelpful. A witness did not become competent merely because the party chose not to call a more suitable witness.
4. The medical evidence made a lengthy interruption likely. The judge therefore had to address the future course of the evidence rather than adopt a laissez-faire approach. He considered alternatives, including sitting on Fridays and during August. In light of the likely surgery, the prospect of requiring Mr Quinn to return after a six-month interval would be oppressive and inhumane if the additional questioning was unnecessary. The judge was entitled to conclude that seven weeks was more than sufficient and that any possible prejudice to the claimants was outweighed by the need for a proportionate and humane trial. The earlier insistence that the claim be tested at trial did not require unlimited cross-examination.

1. Court of Appeal (Civil Division). The appeal from Tomlinson J was dismissed. The court gave its decision on 7 July 2005 and handed down its reasons on 14 July 2005.
2. House of Lords. In March 2001, the House of Lords allowed BCCI’s further appeal, permitted reformulation of the pleadings and directed that the claim proceed to trial. The decision is reported at [2003] 2 AC 1.
3. Court of Appeal. In December 1998, the court dismissed BCCI’s appeal by a majority.
4. Queen’s Bench Division, Commercial Court. In October 1997, Clarke J struck out BCCI’s claim and dismissed the action. The decision is reported at [1996] 3 All ER 558.