The Evolution of Evidence and Phipson on Evidence 1892-2024

Celebrating 225 years of Sweet & Maxwell: Discover the stories behind the books The Evolution of Evidence and Phipson on Evidence 1892-2024 By Hodge M. Malek KC Celebrating 225 years of Sweet & Maxwell: Discover the stories behind the books THE EVOLUTION OF EVIDENCE AND PHIPSON ON EVIDENCE 1892-2024 Sidney Phipson and the genesis of Phipson on Evidence In 1892 Sidney Lovell Phipson published the first edition of the Law of Evidence at the age of 41. He went on to publish another five editions (the last being the 6th edition, 1921) before his death in 1929. It was a tour de force and quickly became highly regarded and used by judges and practitioners alike. Phipson followed a traditional path in his legal career as a barrister. In 1877, he obtained his BA whilst at Clare College Cambridge and in the following year he was called to the bar at Inner Temple. Thereafter he remained in chambers in the Inner Temple. The prefaces to his editions shows the movement of his chambers from 7 King’s Bench Walk in the first edition in 1892, to 5 King’s Bench Walk in the third edition in 1902 and finally to 4 Paper Buildings in the sixth edition in 1921. It is evident that he devoted a lot of his life to writing on evidence. What became Phipson on Evidence largely defines him for those in the legal profession. In the preface to the first edition, Phipson laid out the objectives of his work: “It has been my endeavour in the following pages to supply to practitioners and students a work upon Evidence which should take a middle place between the admirable but extremely condensed Digest of Sir James Stephen, and that great repository of evidence law, Taylor on Evidence.” Neither Stephen nor Taylor are cited by practitioners or judges today, both are merely of historic interest and not updated. Phipson on Evidence in contrast has continued to progress over the decades with the baton of editorship passed from one general editor to the next. Phipson authored the first six editions himself. Now the work is regularly updated and in many places it has seen longstanding chapters rewritten or new chapters added by a team of specialist contributors, being a healthy mix of academics and practitioners. The earlier reviews of Phipson on Evidence It is fair to say that Phipson on Evidence has had its ups and downs over the many decades since 1892 and it is now on its twentieth edition. A review of the eighth edition (edited by Roland Burrows, published in 1942) had the following things to say, perhaps driven more by the state of the law rather than simply the quality of the work1: “For, despite the high place which the present book holds amongst practitioner’s literature, the reviewer found a reading of the present book depressing and discouraging. Depressing, because there seemed to be an endless piling of authority upon authority, of isolated case upon isolated case, of countless distinctions of cases from other cases, of distinctions which this reader, at any rate, could not understand and concerning which the author and his editor offered no solace. Discouraging, because while the subject of evidence might appear to have as its object the “due ascertainment of truth in the 1 Cecil A. Wright. Canadian Bar Review 20 (1942), pp.714-722. administration of justice”, to use the words of Mr Burrows in his preface, the bulk of the volume seemed concerned rather with the problem of preventing the ascertainment of truth by the application of technical rules which bore no sign of internal consistency, and the justification of which seemed to lie in cloudy generalizations unsupported by experience. The results of the application of these rules seem to merit well all the harsh things that have been said by the laymen about the administration of justice. True, Mr Burrows in his preface apparently felt somewhat the same for he spoke rather disparagingly of the principles of evidence and indicated that it was a matter “for serious consideration whether … the subject … ought not to be reconsidered with a view to securing that it shall better conduce to the only object that justifies its existence, viz. the due ascertainment of the truth in the administration of justice.” With this view one can sympathize, although one would have expected from an editor imbued with the futility of much of the subject about which he was writing something more suggestive as to the manner in which dead wood could be cleared out rather than a mere collection of decayed timbers which are offered as the substance of an existing repository of rational thought.” Things appear to have improved for the tenth edition (edited by Michael Argle QC, published in 1963), which received a more positive review2: “This is not merely another routine edition of a well-established practitioner’s book. After the unhappy reception which greeted the ninth edition in 1952, another edition without changes would hardly have met the demands of practitioners and scarcely served Sidney L. Phipson’s original intention of producing a book taking a middle place between Sir James Stephen’s Digest and the more extensive work Taylor on Evidence. In this position it had to serve the interests of practitioners while acting as a reference work for the more curious student. The present edition fulfils this role better then the earlier edition.” The hazards of producing further editions of a work after the original author has died is amply illustrated by the review of the 6th edition, Phipson’s last edition for he did not produce any further editions before his death in 19293: “Should not law books be subject to the maxim, action personalis moritur, etc., or else to some sort of Statute of Prescription which would forbid revisions for more than thirty years after the author’s death? Much may be said for leaving a man’s work as he left it himself. For a few years after his death, perhaps, new cases should be added to his footnotes to bring out further illustrations of his principles. Then the principles themselves become increasingly obsolete with the new developments of judicial and statutory law. Further editions can not truthfully be presented as up-to-date, unless the text be changed; and changes in the text requires the insertion of alien feathers in the old plumage. Some writers are sufficiently great to deserve commentaries in the notes. For the rest, it would be better if the legal authors of our own day wrote books of their own, instead of spending laborious hours patching up the books of their remote predecessors.” Trying to separate out those passages from Phipson’s original work, some of which remain in the 20th edition, is perhaps a task better suited for an archaeologist, for what actually remains is rather sparse and often qualified or updated with modern citations. Those subjects which remain and equate with chapters in both editions are often dealt with in greater detail and certainly with more modern citations in the 20th edition. Chapter 39 of the original edition on attendance of witnesses looks very different to what is now chapter 8 on the same topic which has in effect been completely rewritten. Sometimes it is better simply to start again than to seek to maintain some of the bones of the original work. The law has simply developed too much for patchwork to be anything more than an unsatisfactory sticking plaster. 2 L.W. Athulathmudali. 3 Harvard Law Review 36 (1923), pp.1048-1050. Phipson of Evidence as recognised today Not only is Phipson on Evidence regularly cited in leading judgments, but also on occasion previous editions are considered, particularly in important cases where the evolution of principles of evidence law may be relevant. In TUI UK Ltd v. Griffiths4, the Supreme Court gave detailed consideration to the scope of the rule set out in Phipson on Evidence based on fairness that a party should challenge by crossexamination evidence that it wishes to impugn in its submissions at the end of the case. The Supreme Court not only quoted the principle set out in the current edition of Phipson on Evidence, but also went back to previous editions. Lord Hodge stated in his magisterial and masterful exposition of the law on this area: “42. It is the task of a judge in conducting a trial in an adversarial system to make sure that the trial is fair. It is the task of the judiciary in developing the common law, and the makers of the procedural rules, to formulate rules and procedures to that end. One such long-established rule is usefully set out in the current edition of Phipson on Evidence 20th ed (2022). Bean LJ quoted the previous edition, which was in materially the same terms, at the start of his dissenting judgment. At para 12-12 of the 20th edition the learned editor states: “In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.” This statement is supported by case law, some of which I discuss below, and has often been cited with approval by the Court of Appeal. See, for example, recently, In re B (A Child) [2018] EWCA Civ 2127; [2019] 1 FCR 120, para 18 per Peter Jackson LJ; and Edwards Lifesciences LLC v Boston Scientific Scimed Inc. [2018] EWCA Civ 673; [2018] FSR 29 (“Edwards Lifesciences”), para 62 per Floyd LJ. An earlier version of the text from the 12th edition of Phipson (1976) was cited in Markem, para 59 (p 786) in which the court quoted with approval from the judgment of Hunt J in the Australian case of Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607 (“Allied Pastoral”), in which Phipson was cited. 43. I am satisfied that the statement in Phipson is correct and, as explained below, it summarises a longstanding rule of general application. It is not simply a matter of extensive legal precedents in the case law. It is a matter of the fairness of the legal proceedings as a whole. While many of the cases may have been concerned with challenges to the honesty of a witness, I see no rational basis for confining the rule to such cases or those analogous categories, such as allegations of bad faith or aspersions against a witness’s character, as Mr Stevens suggests. … 53. I also observe that any lack of awareness of the case of Browne v Dunn in the United Kingdom would have been balanced by an awareness of the rule from the leading textbooks, including Phipson and Cross on Evidence. Each of the 11th to 14th editions of Phipson in 1970, 1976, 1982 and 1990 referred to the requirement on cross-examiners to put their own case so far as it concerned the particular witness, and to put any suggestion that a witness was not speaking the truth so as to give an opportunity for 4 [2023] UKSC 48. explanation, and cited Browne v Dunn as authority for those propositions. Similarly Cross on Evidence (after the 7th edition, Cross & Tapper) in its 6 editions between 1970 and 1999 (the 4th to 9th editions) consistently stated that any matter on which it was proposed to contradict a witness must normally be put to that witness so that the witness may have an opportunity of explaining the contradiction and that a failure to do so may be held to be an implied acceptance of the evidence. Browne v Dunn was cited as authority. It may be that the general rule was enforced with greater rigour in Australia, but the rule itself would, I suggest, have been well known in England when Markem was decided. … 70. In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions: (i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair. (iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness. (iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty. (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to crossexamine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule. (viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.” The province of the law of evidence is two-fold. First, to lay down rules as to what matter is or is not admissible for the purpose of establishing facts in issue. Secondly, to set out the manner in which such matter may be placed before the court. One cannot simply divorce the concept of evidence with how and in what circumstances evidence may be placed before the court, and thus procedural rules have a key role. Thus, for example, the law of evidence may provide the answer as to what types of expert evidence is admissible, but to get that evidence properly before the court certain procedural rules need to be followed (set out in CPR, r.35 for civil cases). The objective of any system of evidence is for facts to be determined in a fair and consistent way. It is part of the search for the truth, and as illustrated by TUI UK Ltd v. Griffiths fairness is an important element in the law of evidence and can guide the formulation of rules and procedures to that end5. Fairness is a relative concept and each legal system has its own standards. It is important that not only are the rules of evidence fair, and assist in ascertaining the truth, but they need to be clear and comprehensive for the judges and those who appear before them. It is here where books on evidence are needed to set out the principles in a way they can be understood and applied easily. The law of evidence is a subject which had historically been full of fine distinctions, technicalities and had the effect of excluding what could be quite useful evidence in ascertaining the truth. The hearsay rules in both criminal and civil proceedings have fundamentally changed through statute to be more liberal in allowing hearsay evidence (subject to weight). For criminal proceedings the fundamental changes in procedure by the Criminal Justice Act 2003 swept away much of the old hearsay rules and the Criminal Procedure Rules provide a framework for issues as to admissibility to be raised and determined. Some topics which seemed to have some importance in Phipson’s time no longer are so, whereas new topics have emerged warranting their inclusion. Thus chapter 1 which introduces the subject has a section on the impact of the Human Rights Act on evidence, which was added for the sixteenth edition in 2005. New chapters were added for the 20th edition, namely on evidence in the context of arbitration (chapter 44) and fact finding and the assessment of evidence (chapter 45). Evidence books tend to focus on the admissibility of evidence, whereas for judges and practitioners how one assesses evidence has always been an important subject. Looking back on the position in the late nineteenth century/early twentieth century, and comparing it with the 2020s much has changed in evidence, to highlight a few: (1) The volume of evidence and potential evidence is now vast. In criminal cases even a hundred years ago, the documentary evidence tended to be very limited and oral evidence was central. Today oral evidence is important, but the amount of documentary evidence, both hard copy and in electronic form is often considerable, and is usually a more reliable indicator of the truth. In addition, there is now often computer messages, emails, texts, social media as well as forensic evidence that simply was not available before. Even Phipson on Evidence is now available in both hard copy and in electronic form, the latter being updated between editions. (2) The cobwebs of the hearsay rules have largely been removed and replaced by a more liberal approach, and a rules based approach has been adopted in determining what evidence should be admitted or excluded (e.g. bad character evidence). (3) There are now detailed procedural rules in the form of the Criminal Procedure Rules and the Civil Procedure Rules. (4) Statute has brought substantive changes to the law of evidence, particularly in relation to hearsay, as with the Civil Evidence Acts 1968 and 1995, and the Criminal Justice Act 2003. (5) Witness statements and expert reports are now standard in civil cases with detailed procedural rules. Before the introduction of witness statements, a witness would be called with no advance notice of what he or she would say at trial. (6) Standards of fairness have evolved such that what may have seen fair in even the 1960s could be considered today as unfair. The Human Rights Act has added another dimension to the process of ensuring fairness in cases. (7) The procedural rules have made in many respects litigation both more expensive and complicated than in earlier times. The courts are very much aware of this and for smaller cases matters are streamlined, such as in the small claims track for civil proceedings. 5 [2023] UKSC 48 at [42]. (8) Criminal trials are probably a lot fairer nowadays than formerly. Perceptions of fairness have evolved, the directions and summing ups for juries are more comprehensive and comprehensible than before. Vulnerability of both witnesses and parties is now both recognised and dealt with in the context of trials. Unfairly prejudicial evidence can be excluded. (9) The use of and rules surrounding the admission of expert evidence has developed considerably. Experts are recognised for many disciplines not identified or available in previous times: fingerprinting, DNA, gun residue, gait, drugs, facial mapping, to name a few. (10) In the late nineteenth century juries were more extensively used in civil cases when compared with today where few cases are tried before juries. Also, then the law of evidence in criminal and civil cases was more closely aligned than now. Thus where appropriate, chapters have sections specifically dealing with either civil or criminal cases, such as with expert evidence and the rules of evidence in the course of trial. The law of evidence has not stood still and accordingly much of Phipson’s original work has not stood the test of time. The topic is so far reaching and potentially complicated, that for a detailed work to be done by one author is simply too much. Until the 10th edition in 1963 a single person edited Phipson on Evidence. For the 11th to 14th editions there were three editors. However for the 15th edition in 2000, Michael Howard QC brought in a team of contributing editors, a practice that I have adopted and benefited from since I took over as general editor in 2003. It means each chapter is reviewed and checked over by at least two people. It is appreciated that the editorial process involves pruning and looking at things with a critical eye, and not simply allowing each edition to be a process of adding new cases to the footnotes. Specialists have been chosen who really are experts in the field who can concentrate on particular chapters such as Peter Mirfield on character evidence, Charles Hollander KC on privilege, Roderick Bagshaw on corroboration and identification, Rosemary Pattenden on hearsay, and Katherine Grevling on confessions. New chapters have been added as already noted for the 20th edition, not to mention, the one on the difficult topics of survey and statistical evidence (areas which if not handled properly can mislead and confuse, rather than elucidate) added earlier. Where chapters have needed to be completely rewritten this has been done such as on the attendance of witnesses for the 16th edition in 2005. Phipson on Evidence is a valuable and important resource. As a testament to this, it is often cited in judgments in the United Kingdom and across the common law world. Judges help develop the law as well as the book in their judgments when they comment on or qualify particular passages in the book. Phipson may not recognise the great majority of Phipson on Evidence as it exists today. However he provided the foundation stone on which the book has been built and evolved to the detailed, accurate and highly regarded work that it is today. As summed up by the Lord Chief Justice, Lord Burnett in his foreword to the 20th edition: “Evidence is an important subject as it cuts across all fields of litigation. Phipson continues to be a key resource for practitioners and judges alike, in both the civil and criminal courts.” HODGE M. MALEK KC London October 2024