Michael McDowell (Dublin South East, Progressive Democrats)

This section provides that the court in a personal injury action may, upon the application of a party to the action, direct that a person, other than the party to the action or an expert witness, who it is intended will be called to give evidence at the trial of the action, shall not attend the trial until he or she is called to give evidence. Where a court gives a direction under subsection (1) it can give all such other directions as it considers necessary or expedient to secure that a witness to whom the first mentioned direction applies does not communicate with other witnesses who it is intended will be called to give evidence at the trial of the action concerned or receive information such as might influence him or her when giving evidence. "Expert witness" is defined, in a personal injury case, as a person who it is intended will be called as a witness to give expert evidence at the trial of the action.

The effect of this amendment is to provide for a power, but not a duty, for the courts to exclude witnesses in personal injury actions from the trial of the action. It is commonplace in criminal procedure that witnesses as to fact are sometimes excluded by order of court while other witnesses are testifying so that they may not be influenced by or tempted to match their evidence to that which comes before. The same should apply in civil procedure. It is not mandatory in every case and where the truthfulness of witnesses is unlikely to be an issue it is unlikely that the court will deploy such a power. However, where three people are giving evidence relating to an accident in a heavily contested case, it can be desirable in working out which side is more reliable that the witnesses give evidence without hearing what other witnesses have said before. It is important that they do not hear the cross-examination of preceding witnesses and tailor their evidence to meet it.

I recommend this provision to the House as it will improve the standard of evidence in civil trials. It is already the practice in the UK and other countries to exclude witnesses of fact while others are testifying.