Canada:
Rule In Browne v. Dunn Gets A New Twist
17 December 2014
DLA Piper
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In this article, Davis LLP's Brendan Clancy canvasses recent
caselaw on the rule in Browne v. Dunn. The rule provides
that if Party A intends to lead evidence that conflicts with the
testimony of Party B, Party B should be given advance notice of
that conflicting evidence prior to or on the occasion of his or her
cross-examination. This is so that the witness is given "an
opportunity to explain what might otherwise appear to be
contradictions in the witness' evidence."
Recent caselaw suggests that though the rationale behind the
rule remains intact, the rule has been relaxed. Specifically, Party
B need not be cross-examined on the conflicting evidence if there
is reason to believe that Party A gave reasonable notice of the
conflicting evidence by other means. Brendan further clarifies,
What has evolved is the manner in
which this notice is given. Notice need not come by way of
cross-examination – it may come from the pleadings, questions
on examinations, or even discussions between counsel. Providing
notice other than by means of cross-examination could solve one
problem commonly faced by litigators, namely, putting a direct
proposition to the witness that the witness will almost certainly
disagree with.
This article originally appeared in the December 5, 2014 issue
of
The Lawyers Weekly.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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