YOU ARE PAYING YOUR WITNESSES BY RESULTS: WE WANT TO STRIKE YOU OUT
The judgment of Mr Justice Fraser in EnergySolutions EU Limited -v- Nuclear Decommissioning Authority  EWHC 1988 (TCC) is a highly technical analysis of procurement legislation in an action that had already had a somewhat tortuous procedural history. However I want to look at one part of the judgment that dealt with the fact that the witnesses in the case had an ( initially undisclosed) financial interest in the outcome.
(Personal injury practitioners may wish to have a look at the outcome of this case, with perhaps a wry smile, compared to the law relating to fundamental dishonesty. In a commercial case such as this issues of proportionality and overall justice prevail…)
- The fact that witnesses had a financial interest in the outcome of the action, did not, in this case justify striking out the case.
- The court would not order a re-trial. The witnesses were recalled and cross-examined about their evidence. The defendant had the opportunity to put its case to them.
- There were also issues of proportionality and court management. It would be pointless to order a new trial when the outcome was, inevitably, to be the same.