High Court finds witness should only be excluded from court with good reason

In a recent decision, the High Court has commented on the approach that should be adopted in exercising the court’s discretion to exclude a witness from court before giving evidence: Luckwell v Limata [2014] EWHC 536 (Fam).

In civil cases it is quite normal for witnesses to attend trial and hear other witnesses being cross-examined. The present decision is of interest as there is very little authority regarding the circumstances in which a witness should be excluded. Although this was a family case, the judge stressed that the same approach should apply to both civil and family cases which are (as this one was) heard in public.

Although the judge said the court should only exclude a witness if satisfied that it would be an appropriate step to take in the particular circumstances, he added that the threshold “may not be a high one”. In the present case it was appropriate to exclude the witness because there were issues of fact on which the evidence was still obscure and, the judge said, the evidence would have greater value if the witness was not able to hear certain other evidence before giving his own evidence. Continue reading

Court of Appeal finds undue pressure on witness to produce statement does not come within witness immunity rule

Witness evidence and witness statements have long been given immunity from civil proceedings. The rationale is twofold: firstly so that witnesses in future cases will not be deterred from giving evidence for fear of being sued for what they say in court; and secondly to prevent satellite litigation. The immunity cannot be outflanked by alleging for example a conspiracy to give false evidence. The Court of Appeal in this case has however made clear that if the cause of action isn’t the allegedly false statement itself, there is no need to extend the immunity and the principle that a wrong should not be without a remedy prevails: Singh v Governing Body of Moorlands Primary School and Reading Borough Council [2013] EWCA Civ 909.

The decision continues the trend in recent years of restricting immunity: advocates and experts no longer enjoy immunity for negligence (Hall v Simons [2002] 1 AC 615, Jones v Kaney [2011] 2 WLR 823, see post); malicious prosecution may be available for civil as well as criminal proceedings (Crawford Adjusters and others v Sagicor General Insurance (Cayman) Ltd and another [2013] UKPC 17, see post);  the handling and preparation of exhibits for a criminal trial may not be protected by immunity (Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783). Continue reading

High Court decisions on admissibility of opinion evidence

In two recent decisions, the High Court has considered the circumstances in which opinion evidence contained in third party reports or articles is admissible in civil proceedings. In Rogers v Hoyle [2013] EWHC 1409 (QB), the court had to consider whether a report produced by the Air Accident Investigation Branch of the Department for Transport (the “AAIB”) was admissible in a negligence claim against the pilot of the airplane involved in the crash. In Interflora Inc v Marks and Spencer PLC [2013] EWHC 936 (Ch), the question was whether academic journal articles relating to internet literacy were admissible in a trade mark infringement claim.

In Rogers, the court considered whether the AAIB report had to be excluded as a result of the substantial body of authority demonstrating that findings of tribunals and inquiries are not generally admissible in subsequent proceedings – the so-called rule in Hollington v Hewthorn [1943] KB 587. The judge distinguished this line of authority on the basis that it applies only to judicial findings (which must be based solely on the evidence adduced by the parties) rather than those of an expert investigator (which are based on the expert’s own technical knowledge and experience). The AAIB report fell into the latter category and therefore did not have to be excluded under that rule.

In both cases, the court held that although the evidence in question was “expert evidence” in a general sense, it did not fall within Part 35 of the Civil Procedure Rules and therefore the court’s permission was not required to adduce it. Each judge concluded that Part 35 controls only the giving of evidence by an “expert” as defined in that part, i.e. “a person who has been instructed to give or prepare expert evidence for the purposes of proceedings”.

The key points arising from these first instance decisions are:

  • Judicial findings, based solely on the evidence adduced by the parties, are not admissible in subsequent civil proceedings (subject to a statutory exception for evidence of criminal convictions). This rule does not however apply to the findings of an expert who is entitled to draw on his or her own knowledge and experience in reaching conclusions.
  • The court’s permission is not required to adduce pre-existing evidence containing expert opinion, such as a third party report or article. Permission is only required where the expert has been instructed for the purposes of the proceedings.
  • The court does however have a discretion to exclude such evidence, and may do so for example if the evidence is of a sort that the court would have difficulty understanding and evaluating without an expert’s assistance. Continue reading

Strict approach to witness protection orders

The High Court has refused to order that the identities of certain witnesses should be protected and that their evidence should be heard in private: Cherney v Deripaska [2012] EWHC 1781 (Comm). The court accepted that it had the power to make such orders where necessary to protect the interests of a witness but, for most of the witnesses concerned, concluded that there was not sufficient evidence to show that there was a real risk of violence against them.

The decision suggests that very compelling evidence will be needed before the court will agree to make a witness anonymity order or sit in private to protect witnesses. It seems that orders will not necessarily be granted where a witness faces danger because of giving evidence; the question is whether any danger would be reduced by the orders sought. Where the witnesses’ identities have already been published, or are known to the relevant parties, it may be difficult to obtain an order.

The decision is however subject to appeal, for which the Court of Appeal has granted permission. The hearing has been fixed for 5 September. Continue reading