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Mengiste v Endowment Fund for the Rehabilitation of Tigray, Chancery Division, 22 August 2012

5 September 2012
The issues

Civil evidence – court attendance – cross examination – fairness – resilement from agreement not to call witness

The facts

Mengiste instructed an expert to prepare a report on a document which had been signed by the defendant’s witness (T). T was living in Ethiopia at the time. In preparation for the trial the defendant took steps to ensure T would be in attendance at the trial. There were however difficulties in obtaining the necessary visa and obtaining permission for a video link. Mengiste agreed prior to the trial that they would not need to cross examine T and therefore his attendance was not required.

During the trial, the evidence given by Mengiste’s expert gave rise to issues that led to them revising their decision not to cross examine T. Mengiste made an application to cross examine the witness. The defendant argued that Mengiste was bound by its decision not to cross examine T and it would be prejudiced should the application be granted.

The decision

The application was granted on the basis that everyone involved in litigation should have the opportunity to properly deploy their evidence, and that included the opportunity to challenge the evidence of the opposing party. Decisions made by the parties were not always binding and the Civil Procedure Rules gives the courts extensive powers to make orders to override them if it was just and reasonable to do so. By allowing the application, there was no prejudice to the defendant.

The application was allowed.

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