David Price on challenging a deponent's affidavit

David Price is a solicitor-advocate at David Price & Co and author of Defamation: Law, Procedure & Practice.

In a recent interim judgment in the well-known feud between retired police officer John Gorman and British Airways, it was emphasised that cross-examination, and not mere suspicion, is normally the best way of deciding whether or not a deponent is telling the truth in an affidavit.

Gorman is suing for personal injury, claiming he swallowed a piece of glass from a chipped tumbler on a BA flight to New York in 1993.

The action was due to begin on 5 November 1996 and was listed for a fortnight an unusually lengthy hearing due to BA’s intention to allege that Gorman was a professional complainer and that his claim was fraudulent.

On 31 October Gorman fainted and was admitted to hospital in Tenerife, where he lives for the majority of the time. His partner wrote to the court seeking an adjournment and enclosing a medical report confirming his hospitalisation. BA opposed the adjournment.

Gorman was then unrepresented, hence no application to adjourn was made at the hearing. Judge Medawar QC entered judgment for the defendant.

When an application to set aside the judgment was made, Gorman swore an affidavit and exhibited hospital reports, but BA was told that he would attend the hearing to set aside judgment and make himself available for cross-examination.

BA declined the offer and the judge felt that cross-examination was unnecessary. He dismissed the application to set aside, finding that Gorman had feigned or exaggerated his illness in order to get the trial postponed.

On appeal to the Court of Appeal on 4 February, the Lord Chief Justice, Lord Bingham, emphasised the importance of accepting the word of a deponent as the truth, except in limited circumstances.

That is, where an affidavit is shadowy on its face or defies belief or where the court has heard the deponent under cross-examination and has disbelieved him.

The affidavit was not incredible on its face, Lord Bingham ruled.

Litigators need therefore to consider seeking an order for cross-examination where they wish to challenge their opponent’s affidavit evidence, or else limit themselves to seeking to show that the affidavit defies belief.