Breach of confidence – Privacy – ECHR, Art 8 – intellectual property – Civil procedure – Witness statements – Hearsay evidence – Cross-examination – CPR 33.4 – CPR 32.5
Michael Douglas and Catherine Zeta-Jones, the first and second Claimants, entered into an agreement with OK! magazine, the third Claimants, by which OK! were given exclusive rights to publish photographs of the Douglas-Zeta-Jones wedding. Shortly after the wedding the Claimants became aware that Hello! magazine, the first Defendant, was planning to publish surreptitiously taken photographs of the wedding. The fourth and fifth Defendants and the Claimants obtained witness statements from a picture editor employed by the first and/or second Defendants. At the close of oral evidence at the trial, the first to third Defendants sought to adduce the statements as hearsay evidence, them not having been put in as evidence previously. The Claimants sought to cross-examine the witness. The judge gave permission. The Defendants appealed.
Whether CPR 33.4 applied to a situation where the party opposing the cross-examination had not obtained a statement from the witness.
CPR 33.4 did apply to this situation. Applying CPR 33.4 with CPR 32.5(5), the judge had a discretion to allow the cross-examination as the Defendants had sought to rely on the hearsay evidence. Appeal dismissed.
As demonstrated by McPhilemy v Times Newspapers Ltd (No.2), CPR 32.5 needs to be approached with caution. In this case, the party putting in the unused witness statement of his opponent found that this triggered the right to cross-examine under CPR 33.4 (even though that meant the party who originally obtained and submitted the witness statement was able to cross-examine his own witness).
