england-and-wales advocacy
If the defendant declines the plaintiff&#39;s counsel&#39;s request to give evidence, then how did the latter err?
<p><sub>Source: pp 182-183, <em>The Art of the Advocate</em> (1993) by Richard Du Cann QC.</sub></p>

<blockquote>
  <p> Less fortunate was a Mr Barker in 1896, who suddenly found 
  that all his furniture had been sold by a man named Shalless 
  through a firm of auctioneers. Counsel for Mr Barker was con- 
  fident he could prove his case against both Shalless and the 
  auctioneers for 'converting' the furniture (selling it against his 
  will and keeping the proceeds) by cross-examining Shalless. Mr 
  Shalless was of the same opinion, and although present in court 
  during the hearing, he declined to give evidence on his own behalf. Determined not to be foiled by  this  ruse[,] counsel then 
  applied to the Judge for leave to call Shalless himself. <strong>[1.]</strong> The Judge 
  pointed out that if he had wanted to call Shalless he should have 
  done so as part of his own case. He went on: </p>
  
  <blockquote>
    <p>... in granting the Plaintiff's application ... I should be making a 
    precedent which would, if established, lead to an improper amount of 
    laxity in the conduct of the plaintiff's case. <strong>[End of 1.]</strong></p>
  </blockquote>
  
  <p>  This is a convoluted way of saying that the advocate must 
  make up his mind before the case begins how he is going to 
  conduct it: that he cannot wait until he sees which way the wind 
  is blowing and then call extra evidence. The basis of the rule is 
  more fundamental. A defendant, whether in criminal or civil 
  courts, is entitled to know the whole of the evidence proving the 
  case against him before he is obliged to answer it. That is the 
  principle. Practice demands its enforcement if only because trials 
  last quite long enough already. If purely confirmatory evidence 
  in rebuttal were allowed, it would be difficult to prevent evidence 
  in surrebuttal (evidence called by a defendant in rebuttal of 
  rebuttal evidence) being called with equal frequency, and it 
  would be difficult to see the end of any trial. </p>
</blockquote>

<ol start="2">
<li>I do not understand 1. Mr Barker's counsel had already asked Shalless to give evidence, but Shalless declined. So why did the Judge still blame  Mr Barker's counsel?</li>
</ol>

<p>He should have summonsed him to appear as a witness for the plaintiff.</p>
