In many estates disputes, litigants find themselves in the position of not having as much evidence as they would like, and regretting that they had not gathered more. This occurs because litigation is typically unplanned, with many disagreements suddenly fanning from small flames to infernos. Parties, as well, tend not to prepare for the worst at the outset of their dispute; they hope for reconciliation and do not immediately heed their gloomy forebodings. And, as estates conflicts mostly arise from family quarrels, it is commonplace for parties not to collect receipts, locate witness, assemble affidavits, and secure other evidence until it is too late – when the key witness has died, the receipts are gone, and other useful evidence is buried in the past.
In such cases of scant evidence, parties’ credibility looms large. It is necessary, then, for counsel to skillfully establish their own parties’ credibility while undermining that of their opposing witnesses. In so doing, before counsel contradicts an opposing witness’ testimony, counsel must put the impugning evidence to the witness while the witness is still on the stand. This is known as the rule in Browne v. Dunn, in which case Lord Herschell explained the rule’s purpose:
“My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practices in the conduct of a case but is essential to fair play and fair dealing with witnesses.”
The rule is by no means absolute, for its application depends on the judge’s discretion. With this in view, some counsel deliberately ignore it, concluding that the strategic advantages of evidentiary ambushes outmatch the drawbacks. Consider the damage caused if, at the end of a proceeding, counsel prompts the final witness to let slip several calumnies about another witness who has already been cross-examined; while this would be a breach of the rule in Browne v. Dunn, it might prove worthwhile insofar as it could taint the witness’ credibility.
The consequences of breaching Browne v. Dunn can be impactful. In one Alberta estates decision, the Court of Queen’s Bench found that counsel’s violation of the rule “diminishe[d] the weight of their evidence”. If it is found that counsel has deliberately breached the rule to cause prejudice, the court may prohibit counsel “from the presentation of its case”. Another remedy is for the judge to allow counsel to recall his or her witness to confront the subject matter of the Browne v. Dunn breaches. Recalling a witness and having the final say can provide a strong tactical advantage – “he laughs best who laughs last”, as the idiom goes.
Thank you for reading,
Ian Hull & Devin McMurtry
This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.