clr/1962/1962_1_283.pdf

(3)of the Courts of Justice Law: 1960—Uwas never intended to relieve a plaintiff from his duty of placing before the Court all available evidence. Practice—A party may not split his case. Practice—Evidence—Evidence m reply solely for the purpose of discredi­ ting a defence witness can only be received under certain condti . ΐ ο '· - * ' , . ttons. L r. -* - The respondent-plaintiff applied t o the High C o u r t request­ ing t o hear additional evidence which allegedly w e n t t o s u p p o r t respondent-plaintiff's version in t h e C o u r t below. This was opposed by appellant-defendant arguing that such additional evidence could, w i t h reasonable diligence have been produced at the t r i a l . Held : ( I ) The purpose o f calling in this case additional evidence is t o discredit the evidence of a witness whose credi­ bility has been accepted by the t r i a l C o u r t .

(2)The evidence now sought t o be Introduced was essen­ tially part of the plaintiff's case and t h e witness w h o could give it was available at the t r i a l He ought t o have been called t h e n , and since he was not he cannot be called in reply. A plaintiff may not split his case (Jacobs ν II QB

(3)Tarlton

(1848)421) The t r i a l C o u r t erroneously afforded the o p p o r t u n i t y t o t h e plaintiff t o call additional evidence in reply and although counsel ior t h e plaintiff had ample o p p o r t u n i t y t o consider his course of action nevertheless he declined t o do so. 283 1962 May 3, Nov. 16 YlANNAKU KYRIACOU POURfKKOS V. MEHMED FEVZI 19< 2 * May 3> Ν ϋ ν {(, Υ "~~" KYRIACOU POURIKKOS v. M U I M H ) Fl-V/I (4j A S t he evidence to be called in, reply was solely for the purpose of discrediting a defence witness. It could only be received under certain conditions. (Statement of the law by Tucker L.J., in Rraddock v. Tillotson's Newspapers Ltd.

(1950)I K.B. 47 p.p. 50 and 53, adopted).

(5)The plaintiff has failed to show that the evidence could not have been obtained with reasonable diligence for use at the trial and for that reason alone this application must fail.

(6)Section 25

(3)of the Courts of Justice Law I960 never intended to relieve a plaintiff at the trial from the duty of placing before the Court all available relevant evidence. Application dismissed. Costs ofandincidental tothisapplica­ tion will be costs to the defen­ dant in any event. Cases referred to : Jacobs v. Tarlton

(1848)II Q.B. 421; Braddock v. Tillotson's Newspapers Ltd.

(1950)I K.B. 47. Application to hear fresh evidence. Application to hear fresh evidence made by respondent in the course of the hearing of an appeal against thejudgment of the D. Ct. of Famagusta (Vassiliades, P.D.C. and Ekrem D.J.) dated the 8/4/61 (Action No. 141/60)wherebyjudgment was given for plaintiff in the sum of £441.225 for damages for personal injuiries sustained by him in a road collision. N. Zomenis for the appellant. M. Fuad Bey with O. Mehmet for the respondent. The ruling o f the Court was delivered by :— W I L S O N , P. : This is an application to this Court to hear further evidence made during the hearing o f an appeal f r o m the judgment o f the trial Court. The hearing o f the appeal was adjourned to permit the plaintiff to make the application now before us i n which he* applies that the High C o u r t hear "further evidence, namely, Dr. Rose o f Pendayia Hospital who examined the plaintiff-applicant and whose 284 evidence goes insupport of the version given b> the said applicant in the Court below". 1962 ,May 3, Nov. 16 The application is based on section 25

(3)of the Courts of Justice Law, I960 and the Civil Procedure Rules, Order 48, ruk2, etc. .. •·. , \-• . - YlANNAKia KYRIACOU POUMKKOS The facts relied upon are set out in the affidavit of the plaintiff which accompanies the1application. In paragraph 3the plaintiff says that "Dr. Rose goes to support myversion given by me in the Court below in that 1fell onto the road on my back with both arms thrown wide open at right angles with my body extending full out and that the car passed over my right arm". The purpose of giving this additional evidence is to discredit the evidence given at the trial by the plaintiff's witnesses and accepted by the trial Court. The defendant opposed the plaintiff's application and filed an affidavit, in support of his notice-of intention to opose, in paragraph 2of which he says : "To the best of my knowledge and belief the respondent — plaintiff had all the opportunity to call Dr. Rose to give evidence in the Court below. Dr. Rose was not an eye,witness". After careful consideration of the submissions made on behalf of the litigants, it is our opinion that the purpose of calling of additional evidence is to discredit the evidence of a witness whosecredibility has been accepted by the trial Court. For the reasons now to be given, however, the application cannot be granted. In the first place the evidence now sought to be introduced was essentially part of the plaintiff's case and the witness who could give it was available for the trial. He ought to have been called then, and when he was not he cannot be called in reply. As is well known, a plaintiff may not split. his case e.g.Jacobs v. Tarlton

(1848)11Q.B.

1. Secondly (he trial court gave the plaintiff the oppoituuily. eironeously for the reason given above, to call Mich evidence in icply. After ample opportunity to consider his course ol action counsel for the plaintiff declined to do so. It is loo late now to .nake Mich a request, particularly when no reason is given accounting for this change. 285 v.. MEHMED FEVZI WiUon, P. 1962 May
2. Nov. 16 YlANNAKIS KVKIACOtI POURIKKOS V. MEHMED Ftvzi Wilson, P. Thirdly evidence to be called in reply solely for the purpose of discrediting a defence witness can only be received under certain conditions. In Braddock v. Tilbtsons NewspapersLtd.

(1950)I K.B.47thedefendant successfully defended at trial a libel action brought against it as the result of the publication of an article written by one of its reporters, who was the principal defence witness. Apparently after the action was dismissed the plaintiff learned the reporter had been many times convicted, over a period of many years, of stealing and other offences involving dishonesty, and that there were recorded eight or nine such convictions. She applied.to Lord Chief Justice Goddard for leave to recall the reporter in order that he might be cross examined as to credit. He adjourned the application to the Court of Appeal on appeal, where it was dismissed. At p.50 Tucker, L.J. said : "It has been the invariable practice of the Court of Appeal in this country to confine the admission of fresh evidence, in circumstances such as this to evidence which could not reasonably have been discovered before the trial, and to evidence which, if believed, either would be conclusive or, as has been said by somejudges, to evidence which would lead to the reasonable probability that the verdict would have been different. But the practice has hitherto been confined to evidence relating to an issue in the case, or at any rate to an issue which could and,might yet be raised if there were a new trial in the action. No case has been cited in which this Court has ever admitted or has ever been asked to admit evidence going to credit only. That, of course, is not conclusive ; it is certainly,not conclusive as to thejurisdiction of this court and, for myself, I think that this court clearly has jurisdiction to take any course which it thinks fit with regard to a matter of this kind ; but the invariable practice is clear, and furthermore, when one comes to apply the first test, namely, whether the evidence could have been discovered by reasonable diligence before the trial, that language is really hardly applicable to evidence of this kind, because in the ordinary normal events a solicitor or a client would not be expected, in the absence of unusual circumstances, to go rummaging about, if I may so call it, into 286 the past records of any witness he may think was to be called. In fact, generally speaking, he would not know who the witnesses were who were going to be called: In this particular case it so happens that, owing to ihe necessity for petitioning the House of Commons with regard tothesewitnesses,in thecourse of what took place in the House of Commons the plaintiff's solicitor did become aware of the name of the witness a week or so before the trial. So it is possible, I suppose, if inquiries had been made, that this would have been found out. But 1do not think it is reasonable, with regard to a man in this position, that any inquiries should be made ;,·! am only saying that what has always been regarded as the test — the essential test, namely that the evidence could not have been obtained by reasonable diligence — is hardly - applicable to a case of this kind". After considering several cases notably Brownv. Dean

(1910)A.C.373, he said at p.53 : • ; ' "" "These varyingexpressionshave,sofar asthedecisions of the courts in this country are concerned, always been directed to evidence directly relevant to the main issue in the action, or to some issue which could; or would, have been raised at the trial if theevidence had been discovered. It,is not necessary in this case to expressany opinion as to which is the better view with regard to the quality of the evidence in such a case. If, however, this court is to depart from its invariable practice of confining such evidence to the relevant issues and is to admit fresh evidence directed solely to credit, I am of opinion that such'a course would, if ever,only bejustified where theevidence isof sucha nature and thecircumstances of the case are such that no reasonable jury could be expected to act upon the evidenceof thewitness whosecharacterhad beencalled in question. It would, in my view, be wrong for this court to admit fresh evidence directed solely to credit, incicly because ihcie is a possibility, or merely a ic.isou.iMc probability,that such evidence would result in ,i dillcicni \eulict Ίhere are two conflicting piiNciples ahvays opcutiiig in these matters ; one is that cw-iwliing should IK-done in order to ascertain the tiuth : the othci is that ihcic should be some 287 1962 MayJ, Nov. U YUNNAKIS KYRtACOli POUMKKM p. MEHMED FSVZI Wihon, P. 1962 May 3. Nov. 16 YlANNAKIS KYRIACOU PotlHIKMK I'. MfcHMt.U I'hVZI Wilson, P. finality in litigation, and, so far as possible, a reasonable limitation of costs. It is in order to achieve the" latter result that it is necessary for the court to impose some limit to the re-opening gf decided issues, even at the risk that injustice may result, or it may appear that there is a possibility of injustice resulting". Cohen and Singleton L.JJ., for separate reasons, agreed in the result. We adopt the law as stated by Tucker L.J. In the present case the plaintiff has failed to meet the first test namely that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial and for that reason alone his application must fail. Thisis sufficient todisposeof theapplication. However, reference must be made to one more point. The plaintiff's counsel submitted section 25

(3)of the Courts of Justice Law, 1960, applied and permitted him to place before us the evidence he now seeks to adduce. To this there is a very short answer. This statutory provision was never intended to relieve a plaintiff at trial from the duty of placing before the Court all available relevant evidence. There was no real argument concerning the application of the rules of procedure and wehave not considered it necessary to refer to them. For the reason given the application is dismissed. The costs of and incidental to this application will be costs to the defendant in any event. Applicationdismissed.Costs of and incidental to this application will be costs to the defendant in any event. 288