Alhamrani v Alhamrani [2009] JCA088

Can cross examination of a witness be delayed whilst full disclosure is given and considered and can a party be bound by the evidence of another party's witness if he has not been given the opportunity to cross examine that witness?

The Court of Appeal considered an application by two of the Defendants seeking leave to appeal against certain case management decisions of the Royal Court. The judgment is helpful in that it reaffirms the well established principle that the Court of Appeal will not in general interfere with case management decisions of the Royal Court and will only do so on appeal if the decision is plainly wrong, in the absence of some irrelevant consideration taken into account or some relevant matter left out of account.

One effect of the directions given was that recalled witnesses would need to be cross examined before full disclosure had taken place and the parties had had an opportunity to consider that disclosure. That direction was upheld on appeal. Whilst at first blush such a decision might appear to be at odds with the administration of justice generally, the Royal Court gave a reasoned explanation for its decision. This decision should not be taken as imposing a new rule of thumb as regards the timing of disclosure and cross examination of witnesses. Ordinarily, a party would be allowed time to consider full disclosure before cross examining a witness. However, in this case there was no certainly regarding the date by which the disclosure would be given. The uncertainty regarding the timing of the disclosure had the potential to render the future progress of the trial 'wholly open ended and indeterminate'. Even the most exceptional case, such as this case, must be conducted 'with due regard to considerations of proportionality and expedition and the administration of justice generally'.

The Court of Appeal held that the Royal Court had acted within the bounds of permissible discretion. However, there had been no reasoned explanation given for the direction ordering that cross examination of the recalled witnesses be limited to cross examination by one advocate on behalf of all defendants. The Court of Appeal did not uphold the decision to restrict cross examination to one advocate, given that there was no community of interest between the defendants. Furthermore, such an order was held to be inconsistent with the principle that a party cannot be bound by the evidence of another party's witness if he has not been given the opportunity to cross examine that witness.