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The Bar Association pointed to the fundamental common law principle in civil cases
that the parties may adduce relevant factual evidence and, in doing so, may decide
what witnesses to call and in what order,
the judge having no power to call
witnesses of his own motion, without the consent of the parties.
They argued that a
rule like CPR 32.1 would make great inroads on this principle and would place heavy
burdens on the judge, requiring him to descend into the arena and giving rise to a
grave danger of perceived partiality. Other reforms suggested in the Interim Report
supported by the Bar Association were thought sufficient to ensure that the issues
would be more clearly brought out so that relevance could more easily be determined.
Taken together with the "considerable moral authority" which the court already can
exercise to determine the course of the trial,
such inroads were said to be
unnecessary and dangerous.
Other points of significance were raised by other respondents. Some questioned the
practicality of a procedure for the court to exclude or limit evidence either in advance
or in some other manner that would achieve savings in time. How could the court be
sure that the evidence was of such marginal relevance that it deserved to be excluded
unless it had heard it and was able to weigh it This was the LAD's view and lay
behind the High Court masters' suggestion that the power should be linked to a docket
system. It also appears to underpin the suggestion that the rule be confined to specific
categories of evidence, such as witnesses giving repetitive evidence. The Hon Ms
Miriam Lau, speaking in Legco, similarly suggested that control should be exerted by
setting time-limits rather than excluding evidence in particular areas.
Notes
Citing Bradford CC v K (Minors) [1990] Fam 140 at 153-4; D v NSPCC [1978] AC 171 at 239;
Briscoe v Briscoe [1968] P 501.
Citing Re Enoch and Zaretsky, Bok & Co's Arbitration [1910] 1 KB 327; Kesse v Secretary of State
for the Home Department (Unreported, English Court of Appeal, 7 February 2001) and Jones v NCB
[1957] 2 QB 55.
As pointed out by Lord Simon in D v NSPCC [1978] AC 171 at 239.
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