WHEN WITNESSES DO NOT ATTEND TRIAL 1: WITNESS EVIDENCE NOT ALLOWED: A BROKEN FINGER IS NOT A GOOD EXCUSE NOT TO ATTEND COURT

This is the first of two posts today in relation to witnesses not attending to be cross-examined.  In EC Medica Group UK Ltd & Ors v Dearnley-Davison & Ors [2018] EWHC 1952 (Ch) Kelyn Bacon QC (sitting as a Deputy High Court Judge) disallowed the evidence of a witness whose non-attendance was not satisfactorily explained.  This emphasises the need to have a satisfactory explanation for the non-attendance of witnesses and also to serve Civil Evidence Act notices promptly.

 “It was in those circumstances all the more important that if the Claimants proposed to rely on hearsay evidence in this regard, proper notice of this ought to have been given”

THE CASE

The judge was considering late service of Civil Evidence Act notices by the claimants.

1. Mr Hancock and Ms Dooley-Anderson did not attend the trial. On 4 June 2018, the day before the trial was originally due to start, the Claimants served hearsay notices pursuant to section 2 of the Civil Evidence Act 1995 in relation to the evidence of both witnesses. It is common ground that the court has a discretion to refuse to admit hearsay evidence: White Book paragraph 33.2.3 and Intervet v Merial [2010] EWHC 294 (Pat), §§69–70. I therefore heard submissions at the outset of the trial as to whether the hearsay evidence of these two witnesses should be admitted.

2. In the case of Mr Hancock, it was said that he could not give oral evidence because he was required to be at his new place of work to provide IT support due to the absence of a colleague. The Claimants said, moreover, that they intended to place only very limited reliance on his evidence, confined to the location of certain files that had been deleted by Mr Dearnley-Davison, and the fact of various screen shots taken by the AktivTrak employee monitoring software used by the Claimants. Those matters were in any event not disputed by the Defendants. I therefore permitted reliance on Mr Hancock’s hearsay evidence in those limited respects, although in the event I have not found that anything turned on it.

3. The position of Ms Dooley-Anderson was rather different. The reason given for her non-attendance at the trial was that she had injured a finger on 11 April 2018, which had required plastic surgery on 13 April 2018. On 15 May 2018 her doctor had apparently signed her off work until 27 June 2018. That, in my judgment, was a wholly unsatisfactory reason for non-attendance at the trial: there was no explanation at all of why a finger injury should prevent Ms Dooley Anderson from giving oral evidence. Nor was there any reason why the hearsay notice should have been served so late, given that the doctor’s certification of non-fitness for work was given some weeks before the start of the trial. Her evidence did, moreover, concern an issue that is vigorously disputed between the parties, namely the employment status of Mr Berman. It was in those circumstances all the more important that if the Claimants proposed to rely on hearsay evidence in this regard, proper notice of this ought to have been given. In those circumstances I refused to admit the hearsay evidence of Ms Dooley-Anderson.”