Clarifying Judicial Power Over Witness Sequencing: MA v RE & the Conditional Departure from the Briscoe Principle

Introduction

In MA v RE ([2025] IEHC 341), Ms. Justice Nuala Jackson was asked, at an early stage of a family-law trial, to determine whether the court could compel the Respondent to give evidence before calling other defence witnesses. The application arose under s.173 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, but the procedural controversy transcended family law: it raised the perennial tension between (a) counsel’s traditional autonomy to marshal and sequence evidence, and (b) the court’s modern case-management powers to ensure fairness and efficiency.

The Applicant (MA), represented by Ms. Browne SC, argued that the Respondent should testify first to prevent any “calibration” of his account after hearing others. The Respondent (RE), through Mr. McCarthy SC, relied on the long-standing rule in Briscoe v Briscoe that ordering of witnesses is “solely a matter for counsel”. The decision ultimately clarifies that, in Ireland, the Briscoe principle is no longer absolute: Order 36 rule 42 of the Rules of the Superior Courts empowers judges to intervene, but only where a specific, identified prejudice or out-of-the-norm circumstance is shown.

Summary of the Judgment

• The court reaffirmed that the default position is counsel’s prerogative to decide which witnesses to call and in what order.
• However, by virtue of Order 36 rule 42(3)(II)(c) (“as to the manner in which such evidence is put before the Court”), the High Court possesses jurisdiction to depart from that default where appropriate.
• The English authorities, particularly Global Energy Horizons Corp v Gray [2015] EWHC 3275 (Ch), interpreting CPR 32.1 (“the way in which evidence is to be placed before the court”), were found persuasive and analogous.
• Departures from Briscoe must be case-specific: the court will require concrete identification of prejudice or some manipulation that risks undermining the efficacy or fairness of the hearing.
• On the facts before her, Justice Jackson found no concrete prejudice presently demonstrated. Consequently, she declined to dictate that the Respondent testify first but left the door open for targeted applications should specific concerns arise as the trial progresses.

Analysis

1. Precedents Cited

a. Briscoe v Briscoe [1968] P 501

“What we are concerned with here in a matrimonial suit is the duty of the court and the duty of counsel respectively … the duty of deciding what witnesses should be called and in what order … rests on [counsel] and him alone.” – Karminski J.

For over half a century, Briscoe stood for the proposition that tribunals must not interfere with counsel’s sequencing unless an exceptional justification exists. The case was regularly cited in both Ireland and England as declaratory of counsel’s near-absolute autonomy.

b. Barnes v BPC (Business Forms) Ltd [1975] 1 WLR 1565

This decision introduced nuance: judicial interference with sequencing is an irregularity, but not one that automatically vitiates a trial. An appellant must establish prejudice resulting from the altered order. The judgment signposted a move toward a pragmatic harm-based test rather than a rigid rule.

c. Global Energy Horizons Corp v Gray [2015] EWHC 3275 (Ch)

Asplin J. analysed witness sequencing in light of the English Civil Procedure Rules (CPR). She concluded that, post-CPR, Briscoe’s doctrine is now subject to the court’s case-management powers (Rule 32.1). The judge emphasised that departures from counsel’s preference require something “out of the norm”—for instance, risk of manipulation—thus creating a balancing exercise between autonomy and fairness.

d. Textual Authorities

• Delany & McGrath, Civil Procedure (5th ed.), para 21-24: “Each party … is free to call any witnesses in whatever order he wishes.” Justice Jackson read this as articulating the default rather than an immutable rule.
• Phipson on Evidence (18th ed.), para 11-17: echoed Briscoe but, in footnotes, acknowledged that modern case management may justify judicial intervention.

2. Legal Reasoning

Justice Jackson’s analysis proceeds in three logical steps:

1. Identify the statutory or procedural footing. Order 36 rule 42(3)(II)(c) allows the court to give directions concerning the “manner” in which evidence is presented. By consulting ordinary dictionary meaning (“a way in which a thing is done”), she held that “manner” is broad enough to encompass sequencing.
2. Harmonise with precedent. While Briscoe remains good law, it predates the sweeping case-management reforms of 2016 (in Ireland) and the CPR (in England). The judgment thus reconciles Briscoe’s principle with modern procedural rules: autonomy is the norm, but it yields to judicial directions where justice so requires.
3. Apply to facts. The court categorised the proposed witnesses:
   1. Those challenging the Applicant’s testimony;
   2. Those corroborating the Respondent;
   3. Independent factual witnesses.
   Because the Applicant had already testified, categories (a) and (c) posed no intrinsic threat of unfair calibration. Category (b) might, but only if the Applicant showed concrete prejudice. None was provided at this juncture, so no direction was made.

3. Impact on Future Litigation

• Procedural Flexibility. Irish courts now possess express authority—grounded in Order 36 rule 42—to reshape witness order where fairness or efficiency demands.
• Burden of Particularisation. Parties seeking a departure must articulate specific prejudice. Vague concerns will not suffice.
• Family-Law Implications. Given that family-law disputes often involve credibility contests, courts may see more applications seeking to control sequencing, especially where there is risk of coached or tailored testimony.
• Alignment with England & Wales. The judgment harmonises Irish practice with English CPR jurisprudence, fostering cross-jurisdictional consistency.
• Appellate Review. Barnes remains persuasive: even if a judge does dictate sequencing, appellate courts will assess prejudice rather than annul automatically.

Complex Concepts Simplified

• Ex tempore judgment: A decision delivered orally by the judge immediately or soon after the hearing, later transcribed for the record.
• Burden of proof: The obligation on a party (here, the Applicant) to prove the facts necessary to obtain relief.
• Case-management powers: Modern procedural rules empowering judges to supervise how litigation is conducted—timelines, evidence, and witness order—to achieve fairness and efficiency.
• Order 36 rule 42: An Irish rule introduced in 2016 allowing the High Court to manage trial time, including the “manner” in which evidence is adduced.
• Calibration of evidence: The feared practice whereby a witness tailors testimony after hearing what others have said.

Conclusion

MA v RE confirms that, while counsel traditionally orchestrate their own witness lists, the High Court of Ireland can intervene when justice or trial efficacy so requires. Order 36 rule 42 furnishes the statutory gateway; English CPR jurisprudence offers persuasive guidance; but the touchstone remains specific, demonstrable prejudice. The decision thus charts a balanced path: autonomy for advocates remains the starting point, yet is no longer a fortress against judicial oversight. Future litigants should be prepared to articulate concrete reasons—rooted in fairness, not mere strategy—when asking a court to reorder witnesses. Conversely, parties opposing such an order can find solace in the expectation that the “out-of-the-norm” threshold sets a meaningful barrier against capricious judicial interference.