CASE STRUCK OUT BECAUSE WITNESS EMAILED SOLICITORS AND COUNSEL & SPOKE TO THIRD PARTIES WHILST IN THE COURSE OF GIVING EVIDENCE
NB THIS CASE WAS OVERTURNED BY THE COURT OF APPEAL IN Hughes Jarvis Ltd v Searle & Anor  EWCA Civ 1
In Hughes Jarvis Limited v Searle  EW Misc B6 (CC) Her Honour Judge Clarke struck out the claimant’s case on the grounds that a witness, part-way through giving evidence, communicated with his lawyers. It is an example of the dangers of witnesses talking to third-parties during the course of giving their evidence (although here the witness was clearly warned and ignored those warnings on two occasions).
“…fairness of the trial is a central factor but not the only one: where a claimant is guilty of extremely serious misconduct, as I am satisfied Mr Jarvis is in this case, I may strike out the claim and counterclaim if it would be an affront to the court to permit him to continue. I have considered this carefully and I am satisfied that it would be an affront to the court to permit the claim and counterclaim to continue …”
A witness was giving evidence in a three day trial. He was still giving evidence at the end of the court day, and was in “Purdah”. The judge noted:
“… during the course of Mr. Jarvis’s cross-examination, while he was in purdah overnight, despite being warned not to communicate with any third party including his legal advisers save to identify a single plan, he did in fact send numerous emails to both his solicitors and his counsel overnight. I don’t know what the contents of those emails are. Ms Toman informed me of the emails she had received first thing in the morning, having obtained instructions from her client to do so. I considered what to do and stated that I would deal with this issue after we finished hearing Mr Jarvis’s oral evidence. His cross-examination continued for the rest of the morning and finished late morning. The second discovery was made during his response to the first question put to Mr Jarvis in re-examination by Ms Toman shortly before lunch. She asked why he had changed his evidence on a point in cross-examination that morning from the evidence he had given on the same point in cross-examination the day before. That related to the likely financial consequences for Mr Jarvis personally and the claimant if he was ultimately unsuccessful in the trial. The previous day he had said that the claimant would likely not become insolvent, and that morning he said he had reconsidered and he thought the claimant would become insolvent. In answer, Mr. Jarvis volunteered that he had spoken to Mr. O’Neill of Lime Court to discuss his evidence. Lime Court is one of the funders of the property development being undertaken by the claimant, with which this case is intimately connected. Mr Jarvis specifically volunteered that he wanted to ‘clarify the evidence’ that he had given the previous day, and that his conversation with Mr O’Neill was what caused him to change the evidence that he had given the previous day.
7. Mr Jarvis also explained under oath that he had sent documents to both his counsel and solicitor relating to the dimensions of the rooms of Flat B and Flat E which were offered as suitable alternative accommodation in these proceedings and specifically offered that the evidence that he had given the previous day about the dimensions of Flat B, which he had given orally because he had no documentary evidence in support, was wrong. He said he sent those emails and documents, again, to ‘clarify his evidence’.
8. I found him guilty of three counts of contempt: seeking to communicate with his counsel via email the night before last, seeking to communicate with his solicitor by email the night before last and speaking to Mr. O’Neill by telephone about the proceedings yesterday morning, each being a breach of a specific oral order, made explained and repeated to him by me, that he must not communicate with his legal advisors or discuss any evidence he had given or was going to give with anybody until his evidence was complete. I have adjourned sentencing for contempt until after this application has been determined.
THE DEFENDANT’S APPLICATION TO STRIKE OUT THE CLAIM: JUDGE GRANTED ABRIDGEMENT OF TIME
The Defendant made an application to strike out the claim and the defence to counterclaim. The claimant asked for further time
2. Mr. Hyams for the Defendant submits there is no reason why this application should not be heard today; the lack of notice is because of the unusual circumstances which have given rise to the application; there is no need for further evidence as we were all in court yesterday and witness to the facts which gave rise to the application; that counsel for the Third Party has had ample time to prepare since two o’clock yesterday afternoon since she knew and was warned that this application was coming. He asks that I abridge time for notice and list this at two o’clock so that Ms Toman and her client can have additional time to receive and give instructions respectively, and prepare for the application to be heard at that time.
3. I am with the Defendant. The reason for the short notice is entirely within Mr. Jarvis’s hands. If he had not carried out the actions which caused him to be found to be in contempt yesterday, this application on the third day of a three day trial would not be necessary. It is necessary to hear it promptly as we are part way through a trial, and in fact part way through Mr Jarvis’s evidence. I abridge time for notice accordingly. The issues that I will need to decide to deterimine this application are whether it is possible to for a fair trial of the claim and/or the counterclaim to continue, either in whole or a part. I do not consider that any further witness evidence is required to determine this application, it is a matter of legal submission. The witness evidence which was filed with the Defendant’s application was, as I have already said, witness evidence which was necessary to support the application but in fact it gives no evidence of fact in the knowledge of the solicitor to the Defendant which was not already known to the court, the Third Party, the Claimant and Ms Toman, their counsel, as it refers only to facts which all arose in open court yesterday.
4. In terms of whether an adjournment is necessary or desirable, I bear in mind that Mr Jarvis is still in purdah and Ms Toman has not finished her re-examination. If I do find the trial can be saved, we may be able to finish his evidence today. Conversely, by adjourning this now I would either be requiring Mr Jarvis to maintain purdah through a long adjournment of days or weeks, which is entirely unrealistic, or accepting that he will be re-examined after the adjournment if the application is not successful, which would not be fair to the Defendant.
5. In terms of sufficiency of time to prepare, Miss Toman takes the somewhat startling position that now, at 11.30, if she was given until two o’clock to prepare she will not get any further forward in preparation. I think she should try. I have every confidence in her ability to read several Court of Appeal authorities and distil from them the relevant legal points that she wishes to put before the court. Whether or not she has time or is able to produce a skeleton is up to her; I will not require her to do so. She could have done so during the course of yesterday evening. I certainly was reading authorities and thinking about this yesterday evening because I knew this application was coming. Mr. Hyams produced a very helpful and detailed skeleton yesterday evening which sets out the issues which Miss Toman will have to address for her client. The additional time will enable Mr Jarvis to collect himself and give his instructions. For that reason I will adjourn this until two o’clock and hear it then.
THE JUDGE’S FINDINGS ON THE SUBSTANTIVE APPLICATION
The judgment reviews in detail the law and principles relating to striking out an action in these circumstances. After hearing the submissions she struck out the claim and the defence to counterclaim.