The Rules of the Supreme Court (Amendment No. 2) 1986

6.  Order 38 shall be amended by inserting, after rule 2, the following new rule:—

“Exchange of witnesses' statements

2A.— (1) This rule applies to any cause or matter which is proceeding in the Chancery Division, the Commercial Court, the Admiralty Court or as official referees' business, and in this rule “the Court” includes an official referee.

(2) At any stage in any cause or matter to which this rule applies, the Court may, if it thinks fit for the purpose of disposing fairly and expeditiously of the cause or matter and saving costs, direct any party to serve on the other parties, on such terms as the Court shall think just, written statements of the oral evidence which the party intends to lead on any issues of fact to be decided at the trial.

(3) Directions given under paragraph (2) may—

(a) make different provision with regard to different issues of fact or different witnesses;

(b) require any written statement served to be signed by the intended witness;

(c) require that statements be filed with the Court.

(4) Subject to paragraph (6), where the party serving a statement under paragraph (2) does not call the witness to whose evidence it relates no other party may put the statement in evidence at the trial.

(5) Subject to paragraph (6) and unless the Court otherwise orders, where the party serving the statement does call such a witness at the trial—

(a) that party may not without the consent of the other parties or the leave of the Court lead evidence from that witness the substance of which is not included in the statement served, except in relation to new matters which have arisen in the course of the trial;

(b) the Court may, on such terms as it thinks fit, direct that the statement served, or part of it, shall stand as the evidence in chief of the witness or part of such evidence;

(c) whether or not the statement or any part of it is referred to during the evidence in chief of the witness, any party may put the statement or any part of it in cross-examination of that witness.

(6) Where any statement served is one to which the Civil Evidence Acts 1968(1) and 1972(2) apply, paragraphs (4) and (5) shall take effect subject to the provisions of those Acts and of Parts III and IV of this Order. The service of a statement pursuant to a direction given under paragraph (2) shall not, unless expressly so stated by the party serving the same, be treated as a notice under the said Acts.

(7) Where a party fails to comply with a direction given under paragraph (2) he shall not be entitled to adduce evidence to which such direction related without the leave of the Court.

(8) Nothing in this rule shall deprive any party of his right to treat any communication as privileged or make admissible evidence otherwise inadmissible.”.

(1)

1968 c. 64.

(2)

1972 c. 30.