Ontario Superior Court of Justice Trials

The Rule in Browne v. Dunn

Browne v. Dunn is an English decision from the House of Lords in 1893. It remains good law today and is important for cross-examination. It is sometimes (erroneously) referred to as the rule in Brown v. Dunn or even Brown v. Dunne. You are not alone if you have forgotten or misplaced the “e” in Browne.

By way of background, the plaintiff James Loxham Browne started a lawsuit against a solicitor name Dunn for libel. The alleged libel had to do with the language in a retainer agreement that Mr. Dunn drafted suggesting that Mr. Browne had “seriously annoyed” a group of his neighbours and they wanted an order that Mr. Browne keep the peace. According to one of the neighbours, Samuel Hoch, Mr. Browne, “has sneered, grunted, sputtered and occasionally burst into a brutal gaffaw.” Meanwhile Mr. Browne was going to Court alleging assault by one neighbour and abusive language by another.

Mr. Browne won his trial by jury alleging the retainer agreement was a “sham” document but lost all appeals that followed. The appeals touched upon whether a retainer agreement was privileged in both senses (lawyer-client privileged and privileged communication that is not defamatory without malice) and therefore could not be defamatory.

The more interesting issue arising from the trial and appeals was what obligation a cross-examiner has to cross-examine witnesses on issues which may involve credibility. When the neighbours testified that the retainer agreement was not a “sham” document and was “genuine” it was not suggested to them in cross-examination otherwise.

Lord Herschell, Lord Chancellor described the rule in Browne v. Dunn in the following way:

My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

Browne v. Dunn 1893

The rule is not necessarily absolute and the Court went on to hold:

Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it.

Lord Halsbury described the rule in this way:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to as the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

In sum, if a cross-examiner intends to challenge a witness’s evidence, then they ought to cross-examine on the areas of challenge. This is particularly important for defendants to keep in mind as they are likely to call witnesses after the plaintiff. And it is important for plaintiffs to keep in mind, should the defendant run afoul of the rule.

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