The High Court has declined to make a general direction about the order in which a respondent’s witnesses should give evidence in an application under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
In an ex tempore judgment delivered on 21 May 2025, Ms Justice Nuala Jackson said the usual position was that a party and their counsel choose the order in which their witnesses are called. The court could depart from that position under its trial-management powers, but any such direction should be based on a specific ground for objection.
The applicant’s counsel argued that the respondent should give evidence before his other witnesses, or that a different order should require agreement or a court direction. She said the respondent should not be able to adjust his evidence after hearing other witnesses. The respondent’s counsel argued that the choice of witness order belonged to him.
The judge considered authorities on counsel’s role in selecting witness order, as well as Order 36, rule 42 of the Rules of the Superior Courts, which permits directions about the manner in which evidence is put before the court. She considered that “manner” was likely broad enough to include sequencing. She also considered an English decision on comparable evidence-management powers, which treated witness order as generally a matter for the parties, subject to a court direction where appropriate.
The judge noted that the applicant’s evidence would be completed before the respondent’s witnesses were called. She grouped the proposed evidence into witnesses who would challenge the applicant’s evidence, corroborate the respondent’s evidence, or give independent factual evidence. The respondent’s counsel had cited logistical reasons for calling some witnesses first and the fact that the burden of proof rested on the applicant.
Jackson J said evidence intended to challenge the applicant’s account ought to have been put to her in cross-examination. Any issues arising could be considered if they arose. She said corroborative evidence might be the category requiring a direction, but the court could not decide that question in the abstract.
No specific prejudice or other ground for objection had been set out at that stage. The judge therefore made no general direction on witness order, while leaving open the possibility of considering an application concerning a particular witness or piece of evidence. The judgment did not decide the underlying application or its merits.