MA v RE (Approved)

Factual and Procedural Background

This opinion concerns an application pursuant to section 173 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The court was asked to make a direction regarding the order in which witnesses called by the Respondent should give their evidence at a family law hearing. The issue arose because the Applicant contended that the Respondent should give his evidence first or that any deviation from this order should be by agreement or court direction, to avoid the Respondent calibrating his evidence after hearing others. The Respondent contended that the choice of witness order is solely his prerogative.

Legal Issues Presented

1. Whether the court should direct the order in which the Respondent’s witnesses give evidence, specifically whether the Respondent must give evidence first;
2. The extent of the court’s power to control the sequencing of witness evidence under the Rules of the Superior Courts;
3. The circumstances under which the court may depart from the general principle that counsel decides the order of witnesses;
4. Whether any prejudice to a party arises from the court directing the order of witnesses, and if so, how this affects the propriety of such directions.

Arguments of the Parties

Applicant's Arguments

• The Respondent should give his evidence first to prevent him from tailoring his testimony after hearing other witnesses;
• The court has power under Order 36 rule 42 of the Rules of the Superior Courts to give directions as to the manner in which evidence is put before the court, which includes sequencing;
• Precedent from Barnes v. BPC (Business Forms) Limited indicates that interference with witness order is an irregularity but only grounds for appeal if prejudice is shown;
• Departure from the general rule should be based on specific grounds of prejudice rather than general assertions.

Respondent's Arguments

• The decision as to the order of calling witnesses is a matter solely for counsel, a grave responsibility resting on them;
• Relies on the authority of Briscoe v Briscoe establishing that counsel has the right to decide the order of witnesses;
• Contends that the rule is not absolute and that the court’s interference should be minimal;
• Argues that the Barnes case relates to appeal considerations rather than the initial rule on witness order;
• Seeks to call several witnesses prior to his own evidence for logistical reasons and to challenge the Applicant's evidence effectively.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by recognizing the established principle from Briscoe v Briscoe that counsel generally has the discretion to decide the order of witnesses, a responsibility not lightly interfered with. However, the court noted that this principle is not absolute and that court rules, specifically Order 36 rule 42 of the Rules of the Superior Courts, empower the court to give directions regarding the manner in which evidence is presented, which likely includes sequencing.

In considering the English case Global Energy v. Gray, the court found analogous provisions granting courts power to control evidence presentation, affirming the possibility of court direction in witness order post-civil procedure reforms. The court emphasized that any direction to depart from the norm must be founded on specific grounds, particularly the presence of prejudice or risk thereof.

Applying these principles to the case, the court identified three categories of Respondent’s witnesses: those challenging the Applicant’s evidence, those corroborating the Respondent, and those giving independent factual evidence. Since the Applicant’s evidence would be complete before these witnesses testify, any challenge to their evidence should have been addressed in cross-examination.

The court concluded that only corroborative witnesses might justify court direction on sequencing, but no specific prejudice had been demonstrated. Therefore, any departure from the general rule would require particularized application and argument, which was not presented at this time.

Holding and Implications

The court declined to make a general direction altering the order in which the Respondent’s witnesses give evidence. It held that the default position remains that counsel decides the order of witnesses, subject to court direction when specific grounds, particularly prejudice, are shown.

The direct effect is that the Respondent retains discretion over the sequencing of witnesses unless and until a specific objection with supporting evidence is made. No new precedent was established; the ruling reiterates and applies existing principles within the framework of current court rules.