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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Douglas& Ors v Hello Ltd & Ors [2003] EWCA Civ 332 (3 March 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/332.html Cite as: [2003] EWCA Civ 332 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE LINDSAY)
The Strand London | ||
B e f o r e :
(The Lord Woolf of Barnes)
LORD JUSTICE KENNEDY
and
LORD JUSTICE SCOTT BAKER
____________________
(1) MICHAEL DOUGLAS CATHERINE ZETA-JONES NORTHERN & SHELL PLC | Respondents/Claimants | |
and | ||
(1) HELLO LIMITED (2) HOLA S A (3) EDUARDO SANCHEZ JUNCO (4) MARQUESA DE VARELA (5) NENETA OVERSEAS LIMITED (6) PHILIP RAMEY | Appellants/Defendants |
____________________
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
MR JAMES PRICE QC and MR GILES FERNANDO (instructed by Messrs Charles Russell, London EC4A 1RS) appeared on behalf of
THE APPELLANTS (FIRST, SECOND AND THIRD DEFENDANTS)
MISS HELEN MULCAHY (instructed by Messrs Reed Smith, London) appeared on behalf of THE FOURTH AND FIFTH DEFENDANTS
MR MICHAEL TUGENDHAT QC and MR DAVID SHERBORNE (instructed by Messrs Theodore Goddard, London EC1A 4EJ) appeared on behalf of THE RESPONDENTS
____________________
(AS APPROVED BY THE COURT)
Crown Copyright ©
THE LORD CHIEF JUSTICE:
"Sue Neal ('SN'), formerly pictures editor of Hello! and a person who dealt at the time with the photographer or agent who sold the allegedly offending photographs to Hello!, is capable, in my judgment, of being an important witness on several issues which are already in dispute. Several passages of her Witness Statements ('WS') have already been put to other witnesses, but neither the fourth and fifth defendants (on whose behalf SN's first WS was prepared) nor the claimants (on whose behalf her second WS was prepared) chose either to call her to give oral evidence or to put in her WS as hearsay evidence or to rely on their contents as if evidence. However, at the very end of his case for the 1st to 3rd Defendants, Mr Price QC applied successfully to put in, as hearsay evidence, both of her Witness Statements under CPR 32.5(5) and read the Witness Statements to me at some length and sought to draw inferences from them. He then closed the case for the 1st to 3rd defendants on this, the 16th day of the trial, only then to hear Mr Tugendhat QC for the claimants applying to cross-examine SN under CPR 33.4(1). Mr Price opposed that application chiefly, if not wholly, in point of jurisdiction. Mr Tugendhat, he said, was, at least as to SN's 2nd WS, seeking to cross-examine his own witness, which would be quite extraordinary. I took the view that Mr Tugendhat's application was within the Court's jurisdiction under 33.4, that he was not seeking to cross-examine but seeking rather to cross- examine a witness whom he had studiously not made his own witness (and one whose statement Mr Price had chosen to rely upon) and that SN would have relevant evidence to give. I therefore granted Mr Tugendhat's application. I gave leave to Mr Price to appeal because the position, so far as the parties were able to draw to my attention, is wholly novel and one on which authoritative guidance would be welcome and would be of fairly general application."
"(1) The court may control the evidence by giving directions as to --
(a) the issue on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination."
That rule gives the court very wide powers to control evidence which is adduced; but Mr Price is right in submitting that it does not entitle the judge to look for evidence. It is the obligation of the parties to produce the evidence on which they rely to support their case and to rebut the case of the other side.
"(1) The general rule is that any fact which needs to be proved by the evidence of a witness is to be proved --
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing."
"(1) A witness statement is a written statement signed by a person which contains the evidence, and only that evidence, which that person would be allowed to give orally.
(2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
(3) The court may give directions as to --
(a) the order in which witness statements are to be served; and
(b) whether or not the witness statements are to be filed."
"(1) If --
(a) a party has served a witness statement; and
(b) he wishes to rely at trial on the evidence of the witness who made the statement,
he must call the witness to give oral evidence unless the court orders otherwise or he puts in the statement as hearsay evidence."
There is then a note which is not without relevance to the present issues. It reads:
"Part 33 contains provision about hearsay evidence."
The Part continues:
"(2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the court orders otherwise."
Then there is power for the witness to be able to amplify his statement. It is necessary in addition to refer to rule 32.5(5) which provides:
"If a party who has served a witness statement does not --
(a) call the witness to give evidence at trial; or
(b) put in the witness statement as hearsay evidence,
any other party may put in the witness statement as hearsay evidence." (My emphasis).
That rule sets out what Mr Price did in this case. The other parties had not called Miss Neal to give evidence. Nor had they put the witness statement in as hearsay evidence. Mr Price therefore put in the witness statement as "hearsay evidence".
"(1) Where a party --
(a) proposes to rely on hearsay evidence; and
(b) does not propose to call the person who made the original statement to give oral evidence,
the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
(2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which notice of intention to rely on the hearsay evidence was served on the applicant."