Eye On Regulation


A Case

As the saying goes – it’s an oldie but a goodie. Occasionally in the course of a hearing reference might be made to “the Rule in Browne v Dunn”. It sounds mysterious but it is a relatively simple rule of evidence which was first articulated in a decision of the British House of Lords in 1893.

The rule requires that if a party will be bringing forward evidence that would directly contradict the evidence of a witness, on a matter of any substance, then that party must confront the witness with the evidence. The idea behind the rule is the notion that it would be unfair not to allow the witness to address the contradictory evidence. It also makes practical sense because it allows an opportunity for the decisionmaker to understand and know how the witness addresses that contradictory evidence. Sometimes a witness will change their evidence and agree with the contradiction to their prior point (perhaps their memory was jogged), sometimes a witness will provide an explanation for the contradiction or sometimes a witness will reject the contradiction and provide further evidence as to why they reject it.

The effect of the rule, where it is not followed, is that the contradictory evidence will need to be considered in light of the failure to bring it to the attention of the witness. Sometimes it will be possible to recall the witness and provide them the opportunity to address the contradictory evidence. Other times it might be that less weight is afforded to the contradictory evidence. If rigidly applied, the rule can lead to the exclusion of the evidence but this approach does little to help the decision maker in the sense that they need to get at the truth of a matter and excluding evidence deprives them of the full information to do that. Any decision as to the impact of the Rule in Browne v Dunn should involve the submissions of the parties.

This is how a case from 130 years ago still has relevance today!

Canadian pennies

Our Two Cents for Free

Careful notetaking can be key to a successful investigation whether it be in keeping track of ongoing efforts to carry out the investigation or in interviewing persons who may have information relevant to the issues of concern. It is also important in the course of a hearing and can greatly impact the ability of decision makers to effectively reflect on the evidence they have heard – even where transcripts will be available later. Effective notetaking is not always intuitive and it can be worthwhile considering in advance what you would like your notes to look like and how you will organize them. Depending on the situation you will want to consider whether hand written or typed notes are best, whether and how to number the pages, if you will keep track of dates, whether and what headings to use and if you want to leave space as you take notes to note areas of concern or particular importance, questions that arise or points which were not clear and may need revisiting

A Question

Some matters which regulators deal with can be emotionally heavy. What strategies do you have in place to manage those emotions in the moment as well as afterwards to ensure you are preserving and caring for your own mental health?

Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:

  • A Case: a (very) brief summary of a recent and relevant case;
  • Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
  • A Question: something to get you thinking about ways to enhance your work.

This newsletter is for information only and does not constitute legal advice.

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