A couple of cross-examination issues have arisen recently that they don’t teach at bar school (thought they should).
Alleging forgery in cross-examination
Meg Cochrane & I recently pushed the envelope by alleging forgery in cross-examination without pleading it or serving a notice to prove under CPR 32.19. This is how we explained the principles in written closing submissions:
(a) A forgery is a false instrument created with the intention of inducing somebody to accept it as genuine. The definition of forgery in s.1 Forgery and Counterfeiting Act 1981 is relevant to civil proceedings: Crypto Open Patent Alliance v Wright [2023] EWHC 2642 (Ch) per Mellor J at [44-45].
(b) There is a difference between: (1) serving a notice seeking to prove the authenticity of a document under CPR 32.19; (2) pleading forgery; and (3) alleging forgery in cross-examination.
(c) Under CPR 32.19, a party is taken to admit the authenticity of a document unless a notice requiring the other party to prove the document at trial is served. Authenticity includes any issue that goes to whether the document is what it purports on its face to be is an issue of authenticity: Crypto Open Patent Alliance at [47].
(d) In an appropriate case, the court can waive the requirements of CPR 32.19 and permit an authenticity challenge to be made out of time, even if the party concerned has not made an application for relief from sanctions: Zurius v SoS for Health & Social Care [2025] EWHC 57 (KB) per Aidan Eardley KG (sitting as a Deputy) at [33]
(e) Forgery must be pleaded if it relates to a document relied on in a statement of case: Redstone Mortgages Limited v B Legal Limited [2014] EWHC 3398 (Ch) per Norris J at [56-58];
(f) Where it is not appropriate for an allegation of forgery to be pleaded, the party challenging authenticity should set out the allegation in correspondence to ensure the challenged party has a fair opportunity to deal with it: Lemos v Church Bay Trust Company Limited [2023] EWHC 2384 (Ch) per Joanne Wicks KC (sitting as a Deputy) at [45];
(g) It is too late to object in closing submissions to cross-examination questions about the authenticity of a document based on a failure to serve a notice under CPR 32.19: ECO3 Capital Limited v Ludsin Overseas Limited [2013] EWCA Civ 413 per Jackson LJ at [105-109]. The court is entitled to (and in ECO3 did) make findings of forgery. The same applies to a failure to plead forgery; the charge must be assessed considering the element of ambush and surprise: Redstone Mortgages at [58].
The key points are:
(1) if the other side starts cross-examining about authenticity of documents which it has not raised before, you must object during the cross-examination and get the judge to rule on the issue. Otherwise, you might find the court will decide the issue.
(2) You might be able to get the court to determine unpleaded issues of authenticity if you cross-examine on it and the other side does not object at the time. Once the evidence is before the court, you may even be able to persuade the court to allow you to amend to plead forgery, if needed (though this may be more of a challenge).
(3) The rule is more general. Once evidence has before the court from answers to cross-examination, the judge will consider it. If you want to exclude evidence, you must object to the line of questioning during cross-examination. Your job is not just to sit and take notes. Just don’t say: “Objection, Your Honour!”.
Postscript: CPR 32.19 refers only to documents disclosed under CPR 31. Most of the documents we deal with have been disclosed under PD 57AD. Quaere Do you need to serve a Notice to Admit to challenge documents disclosed under PD57AD? There is nothing in the PD to say that you do.
Putting your opponent’s WS in cross-examination if they are not calling the witness
This came up in Civil Litigation Brief recently: https://www.civillitigationbrief.com/2025/09/04/the-civil-litigation-brief-toolbox-series-1-where-do-you-look-if-you-want-to-refer-to-a-witness-statement-served-by-your-opponent-but-they-are-not-calling-that-witness/. If you don’t subscribe yet, I suggest that you do.
The case referred to is Karpasitis v Hertfordshire CC [2025] EWCA Civ 788. The issue related to CPR 32.5(5). This provides that:
If a party who has served a witness statement does not–
(a) call the witness to give evidence at trial; or
(b) put the witness statement in as hearsay evidence,
any other party may put the witness statement in as hearsay evidence.
The council served a witness statement but chose not to call the witness. This statement in part helped the claimant and in part did not. Counsel for the claimant wanted to put the helpful part to one of the council’s witness without accepting the unhelpful part. The judge said he could not; the Court of Appeal found that he could. Explaining his conclusion, Bean LJ set out some helpful principles:
(a) It is a general evidential rule that a party cannot impugn the truthfulness of their own witness, unless the witness is deemed to be hostile [54-56];
(b) A party can, however, submit that their own witness was mistaken by reference to other evidence: [54-56];
(c) If a party wants to reply on a WS served by the other side under CPR 32.5(5), they must put in the whole of the WS not just part of it: Property Alliance Group v RBS [2018] EWCA Civ 355.
(d) Counsel can put the helpful part of a WS of a party not called in XX without accepting the remainder of the WS: [57]. Bean LJ seems implicitly to accept that this would be putting in the WS under CPR 32.5(5);
(e) A party can submit that the unhelpful part of a WS put in under CPR 32.5(5) is mistaken: [58]. This was, indeed, what the CA concluded in this case.
Principle (b) will be a comfort to many. Clients often make mistakes in oral evidence and Counsel is often unsure how to deal with them in submissions.
It is helpful also to know that you can challenge a witness with an unserved witness statement. It will be important to check that you can argue that unhelpful parts of statement are mistaken rather than untruthful.
