PRACTICE |
Discovery |
Nedship Bank N.V. v. Zoodotis (The)
T-186-99
Hargrave P.
18/5/00
4 pp.
Plaintiff seeking leave to substitute another witness for cross-examination since deponent of its three affidavits of claim no longer employee and refusing to attend cross-examination--General rule that if deponent of affidavit who is subject to cross-examination not appearing, affidavit struck out, and unless justifiable grounds, replacement affidavit will not be allowed--To strike out affidavits without allowing plaintiff any replacement affidavit herein unjust, unjustifiable--Deponent merely swearing corporate affidavit identifying documents of which had little personal knowledge, bearing on events of which probably had less knowledge--To leave plaintiff without any proof of claim far too severe--Plaintiff volunteering Hessels as substitute witness, but Tramp Oil & Marine Ltd. preferring to cross-examine Krijthe--While unaware of any law directly on point as to who ought to choose substitute deponent for cross-examination, Prothonotary borrowing from discovery law that examining party's choice as to who ought to be discovered--Court should not lightly displace such choice--While Tramp Oil risking making poor choice of witness, plaintiff, having escaped loss of affidavits of claim and having received dispensation of substitute witness, will have to produce witness in properly briefed state--Tramp Oil's choice of witness for cross-examination witness ordered produced--Transition from one deponent to another to be accomplished through short affidavit by which second deponent adopting original affidavits--Second deponent subject to full cross-examination as if original deponent.