When will separate counsel be allowed to cross-examine a co-defendant?
Alberta, Canada
The following excerpt is from Trizec Equities Ltd. v. Ellis-Don Management Services Ltd., 1996 CanLII 10350 (AB QB):
However, Macdonald, C.J.A. deduced from his examination of Lord v. Colvin and the authorities cited therein the following rule: The rule, I think, to be deduced from the authorities is, that in respect of trials in civil actions (leaving aside divorce) separate counsel should not be heard in cases in which the parties have not pleaded separately; that when they have pleaded separately but there is no substantial difference in their interests, the Judge may refuse to allow separate representation or cross-examination of co-defendant's witnesses, and that in other circumstances separate counsel may be allowed to be heard with the consequential right to cross-examine a co-defendant or his witnesses.
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