CIVIL PROCEDURE BACK TO BASICS 26: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?

In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded.  There is little authority for the proposition that a court can exclude witnesses or guidance as to how the discretion should be exercised.  This issue was considered by Mr Justice Holman in Luckwell –v- Limata [2014] EWHC 536 (Fam).

“[witnesses should only be excluded] if the court is satisfied, on the facts and in the circumstances of the particular situation, that it would, for good reasons, be an appropriate step to take.   The threshold may not be a high one. The reason may not need to be a very cogent one. But if a court is sitting in public, no one who wishes to be present should be excluded, not even a witness, without some good reason for doing so.”

THE FACTS

Luckwell was an ancillary relief hearing. The hearing was conducted in public and concerned assets which Ms Luckwell had received from her parents. During the hearing counsel for Mr Limata asked for Ms Luckwell’s father to be excluded from court during his daughter’s cross-examination.

THE RULES RELATING TO EXCLUDING WITNESSES

Mr Justice Holman highlighted that point  there did not appear to be “any rule of the civil procedure rules or any passage in The White Book which makes any comment upon, or reference to at all to, the presence of one prospective witness in the courtroom while another witness gives evidence”….

There is a rule in the Family Procedure Rules, namely 27.11 but this was only applicable to private hearings. However 27.11 (6) does state “this rule does not affect any power of the court to direct that witnesses shall be excluded until they are called for”

He commented that

“9. That subrule clearly identifies or signposts the existence of a “power of the court to direct that witnesses shall be excluded until they are called for examination.” But it does not indicate the source of that power and, still less, the circumstances in which, or test by which, it should be exercised”

PREVIOUS AUTHORITIES

The judge  then went on to consider the previous authorities:

“10. The assiduous researches of counsel have only identified a single authority at all germane to this topic, namely, Tomlinson v Tomlinson [1981] 2 FLR 136, a decision of the divisional court of the Family Division. That authority was an appeal from a procedural decision of a magistrates’ court hearing an application to vary, by reducing the amount of a magistrates’court maintenance order. On the facts of that particular case, no application at all had been made to exclude the man with whom the wife concerned was said to be cohabiting and by whom she was said to be being maintained. But when the wife, who was acting in person, sought to call him as a witness to rebut the suggestion that they were cohabiting or that he was maintaining her, the magistrates refused to allow her to do so, on the basis or grounds that he had, meantime, been sitting in the courtroom. It is hardly surprising that the divisional court very clearly and roundly criticised that decision of the magistrates, since the magistrates had been sitting in public and there had not been the slightest direction or indication from the court that the man should be excluded from the courtroom during the course of the earlier evidence”.

 THE TEST TO BE APPLIED WHEN CONSIDERING WHETHER TO EXCLUDE A WITNESS

Mr Justice Holman considered the test to be applied:

“11.During the course of his judgment, Sir John Arnold, President, made interesting historical reference to some earlier direction of Sir John Gorell Barnes, President, as long before as 1908.  It is clear that by 1967, in the view of the editors of the then Supreme Court Practice, that particular practice and direction had “fallen into desuetude”.  At that time, that is, 1967, the editors of the Supreme Court Practice apparently commented:

 “This practice has fallen into desuetude and the present practice in probate and divorce suits is to allow the exclusion of witnesses to depend on the discretion of the judge, either on the application of counsel or at the judge’s own instance.”

 12. Apparently, in the Supreme Court Practice current in 1979 (when Tomlinson was being heard) there was a note that:

 “On the application of either party the court may at any time order all witnesses on both sides, other than the one under examination, to withdraw, but not to leave the court again after evidence so as to communicate with other witnesses before they give evidence.”

 13. Apparently, however, there is no longer any note to that effect nor, as I have said, bearing on this topic at all in the current White Book.

 14. What Sir John Arnold had to say on the topic is at the end of pages 139-140, where he said:

 “It seems to me that the right course is this:  witnesses should not be under any obligation to leave the court, except where an order is made excluding them; that the proper course for justices to pursue, if an application is made to them, would be to exclude the witnesses, unless they were satisfied that that would not be an appropriate step to take …”

THERE SHOULD BE NO DIFFERENCE IN PRACTICE BETWEEN THE CIVIL AND FAMILY COURTS?

He also concluded that there should be no distinction between the practice of the family and civil courts in relation to excluding witnesses from hearings.

“15. Earlier in his judgment, Sir John had commented, towards the end of page 138:

 “It would be very bad practice that there should be differing rules pertaining in different courts.  Therefore, it is plainly desirable that there should be a degree of consistency in the matter.”

 16. That seems to me, with respect, to be clearly right.  I cannot see that there can be any rational grounds for distinction, depending on whether a case is being pursued in the magistrates’ court (now family proceedings court) or in the civil courts, for instance, the county court or indeed civil divisions of the High Court, or in this court.  In any such court, and indeed in any class of case, once the court is sitting in public the broad approach to the exercise of discretion should be the same.  Sir John Arnold put it that “the proper course for justices to pursue … would be to exclude the witnesses, unless they were satisfied that that would not be an appropriate step to take …”  Speaking for myself, and respectful of that decision but mindful that it is not binding upon me, my own feeling is that the approach should be the other way round.  If a court is, in fact, sitting in public, and if an application is made to exclude a witness or witnesses, then the court may exclude them.   But it should only exclude them if the court is satisfied, on the facts and in the circumstances of the particular situation, that it would, for good reasons, be an appropriate step to take.   The threshold may not be a high one. The reason may not need to be a very cogent one. But if a court is sitting in public, no one who wishes to be present should be excluded, not even a witness, without some good reason for doing so. I propose to apply that approach and direct to myself in that way in making the present ruling.”

On the facts of the case the judge excluded the father from parts of the evidence, making it clear that he would allow him to return if the cross-examination turned to topics which did not justify his exclusion.

SUMMARY

• Civil and Family courts do have the power to exclude witnesses from sitting in court during public hearings even though there is no express rule or power in the Civil Procedure Rules or Family Procedure Rules. 

• Courts will be reluctant to exclude witnesses and will only do so if they are satisfied that there are good reasons for doing so. 

• The relevant test is one of “good reason”:

“[witnesses should only be excluded] if the court is satisfied, on the facts and in the circumstances of the particular situation, that it would, for good reasons, be an appropriate step to take.   The threshold may not be a high one. The reason may not need to be a very cogent one. But if a court is sitting in public, no one who wishes to be present should be excluded, not even a witness, without some good reason for doing so.”

ADDITIONS FROM TWITTER

Barrister Elliot Gould added some comments on this on Twitter.

What about Moore v Lambeth County Court Registrar [1969] 1 WLR 141? And also Regina v Murphy and Douglas (1837) 173 E.R. 502 and Selfe v Isaacson (1859) 175 E.R. 688?

And the White Book 32.1.4.3: No rule of law requires that in a trial witnesses must remain out of court until their turn to give testimony arises; it is purely a matter within the discretion of the court (Moore  v  Lambeth County Court Registrar [1969] 1 W.L.R. 141, CA; /2

In re Nightingale, Green v Nightingale [1975] 1 W.L.R. 80; and R (Elvington Park Ltd) v York Crown Court [2011] EWHC 2213 (Admin), August 26, 2011 unrep., and authorities referred to there)

it was stated that a judge should only exclude witnesses if satisfied, on the facts and in the circumstances of the particular situation, that it would, for good reasons, be an appropriate step to take.