6.20: Form of questioning and transcript

Case Summary

The Applicant applied to confirm an Attachment Order that was previously granted against the Defendants ex parte. As a preliminary issue, the Applicants requested that three of the Defendants be required to answer certain questions that were objected to and respond to certain Undertakings that were refused. The questions and Undertakings arose when the Defendants were cross-examined on their Affidavits.

Justice Mah reviewed some general principles regarding the scope of cross-examination on an Affidavit. His Lordship noted that the scope of cross-examination on an Affidavit is somewhat narrower than that of Questioning under Part 5 of the Rules. The Court also noted several differences between cross-examination on an Affidavit and Questioning. One such difference is that a witness cannot be required to inform him or herself in the absence of knowledge when cross-examined on an Affidavit.

Justice Mah reviewed the case law considering Rule 6.20, which also referred to the old Rule 314. After a review of the case law, Justice Mah concluded that the Court should be reluctant to direct that Undertakings be provided by a party proffering a deponent who is unable to answer all questions put to the deponent during cross-examination. The Court also determined that it should be more difficult to have Undertakings directed on cross-examination on an Affidavit than it is on Part 5 Questioning.

With these principles in mind, the Court reviewed each category of objections and refusals and directed that one of the Defendants produce, or make inquiries to produce, emails relating to the Action. While the Court determined that some objected to questions and refused Undertakings were irrelevant, Justice Mah directed the Defendants to comply with certain Undertakings.

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