Full case report
McPhilemy v Times Newspapers Ltd (No.2)
Reference  1 WLR 1732
Court Court of Appeal
Judge Thorpe & Brooke LJJ
Date of Judgment 10 Mar 2000
Defamation – Libel – Civil Evidence – Use of witness statements at trial – CPR Part 32.5
During the course of the Claimant’s libel action, the Defendant chose not to call a particular witness (“A”) for whom it had served two witness statements. Relying upon CPR 32.5, the Claimant sought to put in the witness statements to show the jury that he had changed his account in a material respect and to invite them to conclude that he was lying. The Judge refused the application on the grounds that, notwithstanding the wording of the rule, a party cannot advance evidence from which it seeks to resile. The Claimant appealed.
Whether the Claimant could tender the witness statements of A and invite the jury to disbelive part of the contents.
CPR Part 32.5 did allow a party to put a witness statement in as hearsay evidence where that statement had been served by another party but the witness had not been called by that party. This had changed the position as it used to be under the RSC but did not change the basic rules of evidence. These basic rules prohibited a party from adducing evidence which was generally contrary to his own case on the basis that s/he would invite the Court to disbelieve a substantial part of that evidence. In this particular case, the application of this rule was unsatisfactory as the jury had asked expressly why it had not heard evidence from A. However unfortunate, this was a product of the adversarial system.
This decision stands as a general warning that despite what the CPR appears to say, it is not possible for a party to tender in evidence a witness statement the whole or part of which s/he intends to ask the Court to disbelieve. Where a party adduces evidence s/he is bound by it.
Bindman & Partners
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.