SPEAKING TO YOUR WITNESS IN THE COURSE OF THEIR EVIDENCE: STRIKE OUT DECISION UPHELD ON APPEAL

An earlier post reported on the decision of the Employment Tribunal in Chidzoy -v- BBC (available here). It illustrates the dangers of a witness talking to anyone in the course of their evidence.  This case emphasises the importance of witnesses not talking to anyone about the case during any breaks in the course of their giving evidence.  It also emphasises the important role of the legal representative in informing the witness of this obligation. Although it is an employment case the principle that witnesses must not discuss their evidence is of universal application.

“I am satisfied that any witness in those circumstances would have understood the nature and significance of the instruction; that was particularly so in this instance, given that the Claimant was legally represented and it would be reasonable to assume that the instruction would have been explained to her by her own representative. “

THE CASE

The Employment Tribunal struck out the applicant’s case as a result of her speaking to a journalist during a break in  the course of her giving evidence. That decision was upheld by the Employment Appeal Tribunal.   The applicant appealed to the Employment Appeal Tribunal.

THE JUDGMENT IN THE EMPLOYMENT APPEAL TRIBUNAL

In a decision at Chidzoy v. British Broadcasting Corporation [2018] UKEAT 0097_17_0504 Her Honour Judge Eady QC upheld the Tribunal’s decision.

1. “It is common in a trial for witnesses (including the parties) to be warned that they must not discuss their evidence whilst they are under oath or affirmation. In the normal course, it is unlikely that the warning will ever be expressed in terms as a formal Order of the Court or Tribunal but its purpose and the importance of compliance will be clear: the evidence given must be that of the witness and if others might have influenced the content or manner of that evidence, it will be tainted in a way that is hard to assess and might thus prejudice the fair determination of the case. It is unnecessary to determine whether the ET’s instruction in the present case (given to the Claimant on six separate occasions) amounted to an Order. I am satisfied that any witness in those circumstances would have understood the nature and significance of the instruction; that was particularly so in this instance, given that the Claimant was legally represented and it would be reasonable to assume that the instruction would have been explained to her by her own representative. As for whether the warning was reasonable or in any way impacted upon rights (for the Claimant or others) to freedom of expression, it is clear to me that this was an entirely reasonable and proportionate course for the ET to adopt: it did not impact upon the freedom of the press to report on the proceedings and it imposed an entirely reasonable condition upon the Claimant that was both compatible with Article 10.2 (freedom of expression) of the European Convention on Human Rights and respected the rights of both parties under Article 6 (right to a fair trial).

2. Notwithstanding the ET’s clear instruction, it became apparent that, whilst under oath or affirmation, the Claimant had been party to a discussion in which there had been some reference to her evidence. The first question for the ET was whether that had amounted to the unreasonable conduct of the proceedings by the Claimant.

3. The Claimant says that on this question the ET ought to have heard her oral testimony; only then was it open to the ET to reach a conclusion as to what had actually taken place. On the Claimant’s case the most that could be said was that Ms Gliss had made a comment to her using the word “Rottweiler”; there was no evidence that the Claimant had responded.

4. This procedural point was not something raised before the ET. It was, further, for the ET to determine how best to regulate its own procedure (Rule 41 ET Rules), although it was to do so in a way that would enable it to deal with the case fairly and justly, in accordance with the overriding objective. Certainly, the ET needed to be clear as to what had actually happened. The question thus arises as to whether the procedure it adopted (to obtain statements from all concerned but not to hear oral evidence) enabled it to do so? It is apparent that the ET did not simply accept the Claimant’s account at face value, but was it obliged to first hear her give that account on oath or affirmation before it rejected it? As the Respondent observes, it is unclear what purpose that could have served in this instance. Other than recounting the snatches of conversation they had overheard, the Respondent’s witnesses (Ms Belgrove, Ms Janjua and Mr Silk) could not put a positive case by way of cross-examination and requiring that they give oral testimony to prove that which they were asserting would have given rise to difficulties, potentially leading to a longer adjournment while the Respondent obtained separate representation for this purpose. In any event, the real extent of the difference between the accounts was limited. On the accounts given by the Claimant and Ms Gliss, it was accepted that Ms Belgrove would have heard the term “Rottweiler” being used. There might have been an issue as to whether that term had previously been used in the discussion, but the ET was entitled to take into account that it was because she had already heard this word that Ms Janjua had alerted Ms Belgrove to the Claimant’s conversation with Ms Gliss. It was also entitled to conclude that the word was being used in reference back to the Claimant’s evidence given shortly before the break. Indeed, on the Claimant’s own case, she was party to a discussion that included some reference to her evidence; even if she did not respond to the “Rottweiler” reference, she had heard what Ms Gliss had to say. In the circumstances, I do not consider the ET erred in the procedure it adopted. Adopting an entirely proportionate approach to dealing with the issue that had arisen, it was entitled to conclude – even if it had only had regard to the statements emanating from the Claimant’s own side – that the Claimant had been engaged in a discussion about the case and her evidence with Ms Gliss.

5. As for the ET’s conclusion that the Claimant had thus unreasonably conducted the proceedings, I do not consider that it lost sight of the timing of this incident: it was towards the end of the Claimant’s evidence but she was still being cross-examined, and might then be re-examined, and she had only just given evidence regarding the use of terminology referring to different breeds of dogs. And that evidence was not merely of peripheral relevance – it related to a particular complaint the Claimant had made; something which the ET – immersed in the case as it was – would be best placed to judge. The Claimant had, further, been warned on six separate occasions that she was not to discuss her evidence or any aspect of the case with anyone during breaks in the proceedings. As I have already said, she could reasonably be expected to understand the importance of complying with that instruction. In the circumstances, the ET was entitled to conclude that her conduct of the proceedings – engaging in a discussion about her evidence whilst still under oath or affirmation – was unreasonable.

6. For the Respondent it is said that these circumstances entitled the ET to conclude that it could immediately proceed to strike out the claim: it was akin to a wilful, deliberate or contumelious breach of an Order and was sufficiently serious to amount to an affront to the ET to permit the Claimant to continue in her claim. Whilst I agree that the Claimant’s conduct was very serious, I consider the ET was right to exercise caution and not to merely assume that it should strike out the case. Having made primary findings as to what had taken place, the ET appropriately considered what inference it should draw relevant to the question whether a fair trial might still be possible. It resisted the Respondent’s suggestion that it should infer that the Claimant might have engaged in similar conduct on previous occasions but concluded, nevertheless, that it could no longer have the necessary trust in the Claimant’s veracity to enable it to continue to hear her case. That was a conclusion reached given the ET’s finding as to the nature of the Claimant’s conduct, in being party to a discussion about her evidence with Ms Gliss, but was also informed by her failure to herself bring the matter to the ET’s attention and by the differing accounts she had given – initially, by means of her instructions to her solicitor and then in her own statement. Viewed against the clear instructions it had given to the Claimant during the hearing, the ET was entitled to conclude that it could no longer conduct a fair trial of the Claimant’s case; the loss of trust was irreparable.

7. Notwithstanding that conclusion, the ET then went on to consider whether there was an alternative to striking out the Claimant’s claim. On the Respondent’s case, taken at its highest, the Claimant’s conduct was such that the ET would have been entitled to simply take the view that it was proportionate to strike out her claim. It seems to me, however, that to properly assess proportionality in these circumstances, the ET was right to consider first whether there was any alternative. It considered both whether the claim might be heard by a differently constituted ET and whether it might make some difference if only some parts of the case were struck out, leaving other parts to be determined. Having thus contemplated the possible alternative options, however, the ET concluded that there was no means of retrieving the situation; that finding again being informed by the ET’s conclusion that the Claimant’s conduct had given rise to a fundamental problem in terms of trust. Any new ET would be aware of the reasons why the first hearing had been aborted and there was nothing that could be done to avoid the question raised regarding the Claimant’s credit continuing to be an issue in the proceedings.

8. Having correctly identified and addressed each of the relevant questions in these circumstances, this ET reached entirely permissible conclusions that led it to determine that the Claimant’s case must be struck out. It did so, having undertaken a fair procedure to establish the facts and from a perspective that meant it was best placed to form the assessment as to the significance of the Claimant’s conduct for the fair disposal of her claim. Having reached the conclusion it did, as to the irretrievable loss of trust arising from the Claimant’s conduct, the ET correctly held that there was no alternative to striking out the claim. Accordingly, the appeal against its Judgment in that regard must be dismissed.”