MA v RE (Approved) [2025] IEHC 341 (21 May 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> MA v RE (Approved) [2025] IEHC 341 (21 May 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC341.html Cite as: [2025] IEHC 341 [ New search ] [ Printable PDF version ] [ Help ] [2025] IEHC 341 RECORD NO.: 2022 135M THE HIGH COURT FAMILY LAW IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 173 OF THE CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT 2010 BEWEEN: M. A. Applicant AND R. E. Respondent Ex tempore Judgment of Ms. Justice Nuala Jackson delivered on the 21 st May 2025. INTRODUCTION 1. I am asked to make a direction in relation to the order in which witnesses to be called by the Respondent should give their evidence at this hearing. Ms. Browne SC contends that the Respondent should give his evidence first or, at least, any variation from this should be by agreement or direction of the court. She states that the primary evidence of the Respondent ought to be heard first and that he should not have the opportunity to calibrate his evidence having had the benefit of having heard the evidence of the other witnesses. Mr. McCarthy SC contends that he is at large, that the choice of the ordering of witnesses is entirely one for him. 2. The authorities were comprehensively opened to me by both sides. Mr. McCarthy relies upon Briscoe v Briscoe [1968] P 501 and he opened to me the dicta of Karminski and Lane JJ therein, the former stating: "What we are concerned with here in a matrimonial suit is the duty of the court and the duty of counsel respectively to decide what evidence is called and what order it is called. Speaking for the moment entirely for myself, I have always thought that the duty of deciding what witnesses should be called and in what order they should be called is solely a matter for counsel. It is a grave responsibility and it rests on him and him alone, ..." 3. The latter stated: "It seems to me to be a matter of quite fundamental importance that counsel should retain the right, which I have always understood them to have, to choose what witnesses to call and in what order." 4. Counsel for the Respondent further referred me to Delany and McGrath para. 21-24 (5 th ed): "21-24 Each party to proceedings is free to call any witnesses in whatever order he wishes." 5. Ms. Browne contends that the rule is not absolute. She references the case of Barnes v. BPC (Business Forms) Limited [1975] 1 WLR 1565 by way of exception to the Briscoe principle, this case having held that court direction as to the ordering of witnesses was not a ground for overturning a decision unless there was evidence of prejudice. That case accepted that interference with the sequencing of witnesses was an "irregularity" but not such as entitled an appeal to succeed unless demonstrated to have caused prejudice or a real possibility of prejudice. 6. In that case, Phillips J., having referenced the Briscoe decision, states: "I do not read that decision as laying down as a proposition of law that wherever counsel has been prevented from calling witnesses in the order in which he thinks fit, ipso facto the decision subsequently arriaved at is vitiated. I read the decision in this sense, that once that has happened the appellate court will not readily find that what was wrongly done was done without ill effect. But I do not think it goes so far as to say that it is irrelevant for the appellate court to consider what ere the effects of the departure from the proper procedure. I think the position therefore is that when there has been such an irregularity, the appellate court must look at the situation to see whether there is any prejudice or, more importantly, any real possibility of prejudice to the person who has been wrongly compelled to call witnesses in a different order from that which he intended and wanted." 7. Mr. McCarthy says that this decision relates only to the impact in the event of appeal rather than deviating from the rule as set out in Briscoe . 8. Ms. Browne also referred me to Order 36 rule 42 of the Rules of the Superior Courts (inserted in 2016 by SI 254 of 2016) and in particular sub-rule (3)(II)(c) thereof. This provision is under the general heading "VI Management of time at trial". 9. Ms. Browne submits that the court has the power to deviate from Briscoe in the giving of directions pursuant to the above sub-rule: "(c) as to the manner in which such evidence is put before the Court;..." 10. While there was some discussion as to the breadth of the term "manner" (did it relate only to the way in which evidence was to be given and received by the court (orally, physically, remotely, on commission etc.) or is the term wide enough to encompass sequencing?), I am of the view that the term is most likely wide enough to encompass sequencing. The Oxford dictionary definition of "manner" is "a way in which a thing is done or happens" . I have also had regard to the case of Global Energy v. Gray [2015] EWHC 3275 (Ch) (and I thank Counsel for providing me with a copy of this decision). 11. Here the Briscoe principle was considered by the English High Court (Asplin J.) in the context of the Civil Procedure Rules applicable in that jurisdiction and, in particular, Rule 32.1.(c) "Power of court to control evidence 32.1 (1) The court may control the evidence by giving directions as to – (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court." 12. The terminology is little different to RSC Order 36 rule 42 - it uses the term "way" instead of "manner" - but it seems to me that there is little difference between the language used in the two rules. 13. Asplin J., referencing the submissions of Counsel, stated: "Mr Cavender says that, in fact, I must heed the basic principle, which is as I have described and I think is not actually in dispute. That is, that in general, it is for the parties and their advisors and particularly for counsel to decide on the order in which witnesses give their evidence and the way in which a case is presented and he referred me to a passage in Phipson in Evidence in the 18th edition at paragraph 11-17 as follows: "In general and subject to specific principles mentioned in this chapter, it is counsel's duty to decide what evidence is called and in what order it is called." There is reference in the footnote to paragraph 11-17 to Briscoe v Briscoe [1968] P 501 in which it is said that a decision of magistrates was quashed after the magistrate dictated the order in which counsel should call his witnesses in matrimonial proceedings. The footnote goes on: "Given the case management powers of the court under CPR, it seems unlikely that interference by the judge in the order of witnesses would now be grounds for appeal; nevertheless, the court should not normally interfere." I also have in mind - and these were referred to me in the skeletons: the provisions of the Practice Direction 40A in relation to the taking of an account; the overriding objective; CPR 32.1 which is that the court may control the evidence by giving directions including at (c), as to the way in which the evidence is to be placed before the court; and in particular, to paragraph 32.1.4.2 in the White Book where it is said that generally, subject to any direction that the judge may give, the order in which a parties' factual or expert witnesses give their evidence and are examined will be a matter for the party producing them to decide. 14. Asplin J. then concluded: " It seems to me, therefore, that the position is as counsel has said. In fact the norm is that it is for the party in question and his advisors to decide, but that this is and particularly post-CPR, subject to a direction of the court should it see fit." 15. The learned Judge proceeded then to consider how to determine whether it is appropriate to make such a direction: "There appears to be very little, if any, assistance in that regard. As I have said, Mr Cavender says that I should be looking for something quite serious, a manipulation of the proceedings in the way in which the evidence would come out. Mr de Mestre puts the matter, I think, much lower and says, basically, I should be looking at the efficacy of the hearing and what is appropriate for the court as a whole. It seems to me that I do need to find something, which is out of the norm in order to be satisfied that it is appropriate to make a direction and in this case, I am directed to the nature of the proceedings and the nature of the evidence, which has been given on previous occasions by Mr Gray." (emphasis added) 16. It seems to me that it is appropriate to apply these principles to the present case. It is clear that there are a number of witnesses which Mr McCarthy wishes to call prior to his client in respect of whom sequencing is not in dispute (he seeks to do so for logistical reasons primarily although I do note that Mr McCarthy rightly references the burden of proof in this matter being on the Applicant and that he is seeking to challenge her evidence in this regard and should be permitted to present such challenge as he thinks fit). There are others who it would appear are or may be in dispute. 17. It seems to me that the Respondent's witnesses will be providing evidence to the court which is in one of three categories a. Challenging the evidence of the Applicant b. Corroborating the evidence of the Respondent; c. Independent evidence as to factual matters. 18. As the Applicant's evidence will be completed before these witnesses are called, their proposed evidence ought to have been put to her in cross-examination before being given by the Respondent's witnesses. Issues may arise in this regard and they will have to be considered as (and if) they arise. It seems to me that the only category which may require court direction would be in category b. above. However, it is my view that departure from the general rule cannot be decided in a vacuum - specific prejudice would require to be particularised in application to the court. I do not have such information or argument or submission at this time. If such application is made in respect of a specific witness or a specific piece of evidence, I will consider this and the direction which is appropriate but departure from the general proposition by way of court direction, while possible, must in my view be founded on a specific ground for objection rather than by way of generality. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC341.html