Where a finding of liability against a defendant necessarily requires a conclusion that the defendant lied in evidence, the rule in Browne v Dunn requires that the allegation of dishonesty be put to the defendant in cross-examination. Failure to do so, combined with a failure by the trial judge to address the defendant's denials, constitutes a miscarriage of the fact-finding process. In such circumstances, the party who failed to put the case of fabrication at trial will be bound by that forensic choice, and no new trial will be ordered to permit the case to be run differently.
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