Key Cases

Question 1

What is the rule in Browne v Dunn?

Answer 1

It is a rule of professional practice that it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.

Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.

Question 2

What is the rule in Jones v Dunkel?

Answer 2

1. Unexplained failure by a party to give evidence, to call witnesses, to tender documents or other evidence or to produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.
2. The rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it.
3. The rule only applies where a party is “required to explain or contradict” something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts “requiring an answer”.
4. The rule in Jones v Dunkel does not apply where the witness not called is the party’s solicitor, at least where the evidence which is in consequence not given is privileged and the privilege has not been waived. This is because if the solicitor gave evidence on the subject of privileged communications the privilege would be lost.
5. The rule does not operate to require a party to give merely cumulative evidence.