In civil proceedings brought in relation to an alleged unlawful killing, the defendant elected not to attend or be legally represented at the trial. The trial judge ordered the trial to proceed in the defendant’s absence. The claimants contended that, in the defendant’s absence, there was no one to call his expert pathologist witness to give evidence and it should not be admitted at trial.
On the question whether the court should hear the expert’s oral evidence—
Held, in circumstances where a party was genuinely prevented from attending trial in person, and unable to do so through the auspices of legal representatives, but still wished to adduce oral evidence from his witnesses, the court might, in principle, permit him to do so or at least entertain the prospect. But, in the present case, notwithstanding the seriousness of the allegations and the importance the pathology evidence, the court would not permit that unusual course. The defendant had deliberately chosen not to be present at the trial and not to participate in it. Furthermore, if he maintained that position, it would cause real unfairness to allow his expert to give oral evidence. It remained open to the defendant to attend trial, either himself or by counsel, if only for the limited phase of the expert pathology evidence. Otherwise, the court would treat the expert’s written reports as evidence in the case, albeit attaching such weight to them as it considered appropriate in circumstances in which the claimants had not been afforded the opportunity to test them in cross-examination (paras 22, 26, 27).
Lesley Anderson KC, Tom Gosling and Arianna Barnes (instructed by Glaisyers ETL) for the claimants.
The defendant did not appear and was not represented.