A WITNESS IN THE COURSE OF GIVING EVIDENCE IS IN PURDAH: THE ROLE OF THE LAWYER

The Employment Tribunal decision in Chidzoy -v- BBC (available here) contains an important lesson to lawyers and litigants alike.  A witness in the course of giving evidence is in “purdah” – in that they should not discuss the case with anyone (including their lawyers). In the Chidzoy case a failure to follow this rule led to the ET striking out the claim. It is a decision that shows the importance of the lawyer taking active steps to ensure that a witness does not discuss the case with anyone.

THE CASE

Ms Chidzoy was bringing a claim against the BBC.  Her evidence was given over several sessions. At the end of each session she was specifically warned not to discuss her evidence with anyone.  However during a break  in the hearing, at a time when she was giving evidence, she was left alone with a journalist and discussed the case with them.  The circumstances in which she spoke to the journalist was disputed.

As a result the ET struck out the action.

“The Claimant was not unrepresented. There were two members of the solicitors’ practice acting on her behalf present throughout the Hearing and during the adjournments. They fully understood (or should have done) the  importance of a witness not engaging in discussion whilst they are giving evidence. It is said by Miss Belgrove that this is ever more so when it is one of the parties to the action that is giving evidence but that seems to us an unnecessary gloss on the events (save in except that a witness giving tangental evidence might simply might have their evidence disregarded in such circumstances if it was appropriate).”

Further the solicitor should have taken active steps to remove the witness from the presence of a journalist.

“The discussion between the Claimant and the Journalist was either facilitated by Mr Jackson (he did not ensure the Claimant returned to her room but engaged, on his own report, in a three way discussion with the Claimant and the Journalist) or permitted by passive conduct. He was engaged in a three way discussion with the Journalist and the Claimant, absented himself to go to the lavatory but did not ensure that the Claimant also terminated the conversation and went to her room.”
“It is beyond our understanding as to why the Claimant was left by Mr Jackson alone with the Journalist during an adjournment and equally why she was allowed to be part of a three party discussion with the Journalist and Mr Jackson at what was a very late stage of her evidence with the strictures of the Tribunal given, as we have said, no less than six times ringing in their ears.
36. That discussion during the currency of the Claimant’s evidence in our view constitutes unreasonable conduct. It shows a disregard for the Tribunal’s clear instructions as a result of which the Respondent has made the application which is before us”

THE RESULT

The tribunal found that this was unreasonable conduct, it was no longer possible to hold a fair hearing and the claim was struck out.