CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 2: WHEN A WITNESS DISCUSSES THEIR EVIDENCE
The judgment in McGann v Bisping  EWHC 2951 (Comm) deals with numerous procedural issues, many of which arose in the course of the trial. We have looked at one of these already. The case also involved a witness, during the course of giving evidence, discussing the matter with a third party. It provides a further reminder of the importance of witnesses not talking to anyone about the case in the course of their giving evidence.
The action was a dispute between an agent and a mixed martial arts fighter. There was a claim for arrears of commission and repayment of expenses.
DISCUSSION OF WITNESS EVIDENCE
The judge dealt with an issue that had arisen in relation to the claimant, who was part way through giving his evidence in court, discussing his evidence with third parties.
“Mr McGann discusses his evidence
Mr McGann began his evidence on the afternoon of Wednesday, 26 April 2017 (the first day of the trial) and was still being cross-examined when the court rose for the weekend at the end of Thursday, 27 April 2017. I gave Mr McGann the usual direction that, while he was giving evidence, he should not discuss the case (or his evidence) with anyone. I specifically instructed him that he should not discuss the case with any members of his legal team or with his wife, other family members or any of his friends.
Despite this instruction, Mr McGann did discuss the case and his evidence over the weekend. This was discovered (as I was later informed) in the following circumstances. On Monday evening (1 May 2017), Mr Lee Gwynn, Mr McGann’s business partner, sent an email to Mr McGann’s counsel and solicitors, copied to Mr McGann himself, to which was attached a document setting out a number of matters that Mr McGann had “recalled” over the weekend about issues that have been dealt with in earlier cross-examination, and about corrections or clarifications that he wished to make to his previous answers. Mr Lawrence read that email in the train from Liverpool on his way to court.
This set in motion a train of events which resulted in the waste of nearly a complete court day. Mr Lawrence first had to take instructions from Mr McGann. He then (as he told me) had to check with the Bar Council’s Ethical Enquiries Service his provisional view that it would not be proper for him to continue without informing the court of what had happened. He then had to obtain Mr McGann’s consent to tell the court. That having been done, Mr Lawrence then sought to put before the court (on Mr McGann’s instructions) only a redacted version of the email which he had received. Only when, following an objection by Mr Buttimore, I ruled that an un-redacted copy should be provided were the full terms of Mr Gwynn’s email disclosed.
Mr McGann gave an explanation for his conduct later in his evidence. According to Mr McGann he had become incensed by certain aspects of the cross-examination, particularly in relation to his conduct in relation to the submission of a misleading return to the Australian tax authorities on behalf of Mr Bisping (see paragraphs 103 to 108 below). He had (in his words) been “ranting” about it to his partner, Kristin, over the weekend. Kristin had then, by chance encountered Mr Gwynn in the street (the families living near to each other), and had passed on to Mr Gwynn what Mr McGann had said. Mr Gwynn had then passed the information on in the email to Mr McGann’s legal team. According to Mr McGann, he had not discussed his evidence directly with Mr Gwynn.
Mr Gwynn made a short supplemental witness statement dated 4 May 2017 which broadly confirmed Mr McGann’s evidence about this aspect of the case. He declined to answer questions in cross examination about these events, saying that he had dealt with them in his witness statement and claiming the privilege against self-incrimination.
Mr Buttimore challenged the accuracy of the accounts of these events given by Mr McGann and Mr Gwynn, submitting that the contents of Mr Gwynn’s 1 May 2017 email clearly showed that Mr McGann and Mr Gwynn had conferred directly about a number of aspects of Mr McGann’s evidence. Mr Buttimore did not make any applications or seek any specific relief on the basis of these events. Instead, he simply submitted that these matters reflected poorly upon the credibility of both Mr McGann and Mr Gwynn. That seemed to me to be a proportionate and practical approach.”
CONDUCT OF THIS TYPE HAS LED TO AN ACTION BEING STRUCK OUT
It is worthwhile recalling that in Chidzoy -v- BBC (available here) the Employment Tribunal struck an action out when a witness, part-way through giving evidence, discussed the matter with a journalist.