1The discretion under UCPR r 24.3 to order the examination of a witness otherwise than at trial is a discretion at large, subject only to judicial exercise. Neither r 24.3 nor r 31.1 is confined by or to questions of witness infirmity, and Bidder v Bridges (1884) 26 Ch D 1 does not establish an infirmity precondition.
2Evidence taken before an examiner may be tendered at trial and, once tendered, is as much part of the public hearing as any other evidence. An objection that such an order offends the principle of open justice is therefore misconceived.
3In refusing an extension of time, a delay of about three months was not in itself fatal. On the facts, however, three matters warranted refusal: no reasonable explanation was given for the delay; the applicant had actively participated in arranging the examination it later challenged; and the examination had been completed in full, making the challenged order spent.
