K15.2. Greater powers to regulate the evidence
| 474. |
CPR 32.1 is in apparently far-reaching terms
and provides as follows :- |
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"(1) |
The court may control
the evidence by giving directions as to - |
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(a) |
the issues on which it
requires evidence; |
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(b) |
the nature of the
evidence which it requires to decide those issues; and |
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(c) |
the way in which the
evidence is to be placed before the court. |
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(2) |
The court may use its
power under this rule to exclude evidence that would otherwise be admissible. |
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(3) |
The court may limit
cross-examination." |
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| 475. |
A rule of court of such width is potentially
controversial. As the White Book (Note 425) points out :- |
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"Traditionally,
rules of court have been confined to a narrow aspect of the law of evidence and have
concentrated on matters falling on the border between rules of evidence and rules of
procedure (the best example being rules relating to the manner in which evidence may be
given). Further, they have provided very good illustrations of the ways in which the
'mixture of rules' may be varied at 'different stages in the proceedings'. But the lines
that divide these two bodies of legal rules (evidence and procedure) and which separate
them from substantive legal rules are not clear cut. The question as to the extent to
which power to make court rules relating to practice and procedure permits the making of
rules on evidentiary matters has been much debated (even in the days when rule-making was
the province of judges and judges alone). Generally, the suggestion that, what could be
called, the substantive law of evidence could be altered by court rules has been
resisted." |
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| 476. |
However, in England and Wales, the Civil
Procedure Act 1997 appears to resolve the controversy in favour of broader procedural
rule-making powers which may impinge upon the substantive rules of evidence. Schedule 1,
para 4 of that Act states :- |
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"Civil Procedure
Rules may modify the rules of evidence as they apply to proceedings in court within the
scope of the rules." |
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| 477. |
The White Book comments, with some
justification, that "the scope of this paragraph is not immediately apparent."
(Note 426)
However, some clarification was provided by the English Court of Appeal in GKR Karate
(UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 2 All ER 931; where May LJ stated :- |
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"[CPR 32.1] means,
in my judgment, that the parties no longer have any absolute right to insist on the
calling of any evidence they choose provided only that it is admissible and arguably
relevant. The court may exclude admissible and relevant evidence or cross-examination
which is disproportionately expensive or time-consuming, provided that to do so accords
with the overriding objective." (Note 427) |
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| 478. |
Such a power is likely to be a useful part of
the court's case management armoury. It enables the court to address directly the problems
of prolixity and disproportionate expense in relation to witness statements and in
cross-examination. As discussed in the later section on Expert Evidence, it is important
that the court should have a well-founded power to exclude inappropriate or excessive
expert evidence. Accordingly, provided, as May LJ stressed, its employment accords with
the overriding objective of dealing with cases justly, it is a power which should be
considered for adoption. |
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| 479. |
However, if it is to be introduced in Hong
Kong, an amendment to the High Court Ordinance, Cap 4, may be needed. It is arguable that
the present rule-making power is sufficiently wide, (Note 428) but it would be prudent to ensure that the power is placed on a proper legal
footing by enacting a provision dealing expressly with the power. Readers are consulted as
to the desirability of such a development: Proposals 35 and 36. |
Notes
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