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19.4
The Working Party's view
As indicated in the Interim Report, the present rule, O 38 r 2A(7)(b), permits a witness
statement to be supplemented in testimony in very limited circumstances. A witness is
generally only allowed to give evidence the substance of which has been included in
the witness statement. He is allowed to go further only if the other parties consent; or
if the court had previously directed that the witness statement should be limited to
stated issues; or if the additional evidence relates to matters which have arisen since
serving the witness statement.
The Working Party favours replacing that rule with a rule along the lines of CPR
32.5(3) and (4) as canvassed in the Interim Report. They state as follows :-
"(3)
A witness giving oral evidence at trial may with the permission of the court -
(a)
amplify his witness statement; and
(b)
give evidence in relation to new matters which have arisen since the witness
statement was served on the other parties.
(4)
The court will give permission under paragraph (3) only if it considers that there is
good reason not to confine the evidence of the witness to the contents of his witness
statement."
This maintains the basic position that a witness is generally to be confined to the
contents of his witness statement. However, the court has a general discretion to allow
him to go beyond such contents if there is "good reason" to do so. The court's
discretion would no longer be restricted to the narrow categories set out in O 38 r
2A(7)(b). Where, for instance, the amplifying or supplementary evidence would take
the other side by surprise, the court could be expected to disallow it unless there was
good reason to do otherwise, in which case it would be likely to let in the evidence on
terms designed to avoid prejudice to the other side.
Recommendation 100: Proposal 37 (for introducing greater flexibility in
permitting a witness to amplify or supplement his witness statement) should be
adopted, replacing O 38 r 2A(7)(b) by a rule along the lines of CPR 32.5(3) and
(4).
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