Think Before You Speak - When Witnesses Discuss Evidence

In the midst of a trial, your client is giving evidence when he happens to mention that despite being warned not to, he rang someone overnight to ask their views about an issue in the case. Cue deep intakes of breath and stern admonitions from the bench. The question which then arises is what the trial Judge is to do. That very situation arose before HHJ Melissa Clarke in Oxford, leading the Court of Appeal to determine whether her approach was correct.

The Facts

Hughes Jarvis Limited pursued possession proceedings against David Searle seeking to evict him in order to pave the way for a development. That was met with a counterclaim alleging breach of repairing obligations, obstruction of a right of way and trespass. The case came on for trial before HHJ Melissa Clarke in Oxford. During the course of that trial, Neil Jarvis, who is the sole director and shareholder of HJL gave evidence. He was warned not to discuss his evidence over the lunch adjournment. That warning was repeated when he was still giving evidence at 1630.

That night Mr Jarvis sent his solicitors and Counsel a number of emails. They were not read by the lawyers and the Judge was notified that they had been sent. During the course of re-examination, Mr Jarvis stated that he had telephoned an advisor to the financier of the project to ask what his position would be in the event that possession was not granted.

The Judge immediately indicated that she considered that Mr Jarvis had committed a serious contempt. Without giving Mr Jarvis the opportunity to put in further evidence she found him in contempt and adjourned sentence until the following day.  She further decided to remand him in custody overnight. The following day the Judge, despite Counsel’s protestations, proceeded to strike out the claim and entered judgment on the counterclaim. She then sentenced him to 14 days imprisonment, suspended for 3 months.

The Appeal

Mr Jarvis appealed. The Court of Appeal was scathing of the approach adopted. The giving of a warning in respect of evidence is not an order of the Court.

Patten LJ said:

‘The obvious sanction open to a judge who discovers that a witness has communicated with some third party about his evidence during the course of the trial is to ascertain what was discussed and, if appropriate, to discount or give no weight to the evidence.  It is difficult to envisage why it would ever be necessary or appropriate for the judge to make an order in such terms.  But if the judge here had wanted to make her warning to the witness an order of the court which if breached could lead to the witness’s committal for breach of the order, it was incumbent on the judge to spell out to the witness not only the precise terms of the order which was being made but also the consequences (in terms of committal) which could follow from a breach.  None of this was done in the present case’

Having then considered the powers of a Judge of the County Court and concluded that the Judge did not have the power to make the order which she did, Patten LJ said:

It seems to me that the judge completely lost sight of these principles in deciding to proceed as she did.  Although she was told by Mr Jarvis about the extent of his contact with Mr O’Neill and also that the emails had not been read, she decided to bring the proceedings to a halt and to deal with the committal almost immediately without giving Mr Jarvis or his legal representatives any time properly to prepare for a committal hearing or to take instructions.  Mr Jarvis was not given any opportunity to apologise or to explain why he acted as he did.  Instead, the judge seems to have regarded the fact that Mr Jarvis acted in breach of her instruction not to discuss his evidence as conclusive of all issues relating to his committal.  His committal to prison overnight was in my view particularly unfortunate and was a completely disproportionate reaction by the judge to the situation with which she was faced.  If, as the judge apparently thought, the seriousness of the contempt justified bringing the trial to an end then there was in those circumstances no reason for her not to follow the usual CPR 81 procedure and to adjourn any committal proceedings to a further hearing with appropriate directions for evidence.  Her failure to observe and apply these safeguards led to a hearing which was neither fair nor impartial and I would for those reasons alone set the committal orders aside.

The Court of Appeal also set aside the strike out order, commenting that the same was ‘an overreaction by the Judge not justified by the circumstances’. He went on ‘Instead, the Judge, I am afraid, completely overreacted and made an order which cannot be justified’.

Leggatt LJ perhaps summarised the Court of Appeal’s views most succinctly when he said ‘The judge’s response to Mr Jarvis’s disclosure that he had spoken to somebody while the case was adjourned overnight about a matter touching his evidence could well serve as a case study in how not to deal with such a situation’. That was followed by ‘the judge’s actions in remanding him overnight in custody was a misuse of judicial power’.

Practice Points

It is a situation which many at the Bar will have come across. Witnesses should have it spelt out to them that they should not discuss their evidence with anyone else. However, in the event that they do it is highly unlikely to be considered a contempt. Neither ought it lead to the striking out of a case. Rather, as the Court of Appeal indicated, the Court ought to ascertain the circumstances and the content of any such discussions and then to weigh them in the balance when considering the final judgment. I rather get the feeling that had the trial Judge continued to hear the evidence and then made an adverse finding against Mr Jarvis, preferring the evidence of the other witnesses, then the Court of Appeal would have been unlikely to have overturned such decision.

A useful case to have in reserve in the unlikely event that an advocate finds themselves in the positon that Ms Toman found herself. The strident criticism of the trial Judge is likely to stop most Judges in their tracks. As always with contempt proceedings, reflection and consideration will ordinarily avoid most of the common pitfalls.

Should you wish to discuss this topic or any other matter with Hamish, please call the clerks on 0117 921 1966.