WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL

In Axnoller Events Ltd v Brake & Anor (cross-examination on a draft witness statement) [2021] EWHC 2539 (Ch) HHJ Paul Matthews considered the unusual circumstances whereby a barrister gave evidence, and was cross-examined, on what happened at (or outside) a hearing he had been involved in.

THE CASE

In ongoing proceedings the claimant wanted to rely on a draft witness statement made by one of the defendants.  The defendants argued that the statement was privileged. There was an issue of fact as to how the claimant came to have a copy of the statement.  The claimant’s counsel said it had been shown to him at an earlier hearing and he had taken copies on his phone.  The defendants’ counsel had no recollection of showing the witness statement to the claimant’s counsel. The judge had to determine, as an issue of fact, how the claimant came to be in possession of the draft statement.   The claimant’s counsel made a witness statement and was cross-examined on that statement.

CROSS-EXAMINING A BARRISTER ON A CASE THEY WERE INVOLVED IN

The judge considered the cases relating to cross-examination of a barrister.

1. 1. Mr Modha was in fact cross-examined on his witness statement by Mrs Brake. I should say that I did take time briefly last week to look at some authorities on the question of counsel giving evidence at a trial of matters with which he or she has been concerned as counsel, and I circulated some of those authorities to the parties: Hickman v Berens [1895] 2 Ch 638, Wilding v Sanderson [1987] 2 Ch 534, and Appleby v Errington, The Times, 22 October 1952. The last of these is a rather extraordinary case, where it was not just counsel that gave evidence, but also the trial judge (now an appellate judge, Hodson LJ). He gave evidence as to what had happened at the trial. So did the two counsel, one of whom had since become a High Court judge (Karminski J), and the other was in fact subsequently to become a rather famous barrister, Mr John Mortimer.

1. It is clear from those authorities that there is no objection in principle to counsel providing evidence of what has happened in a matter with which they were concerned professionally. Exactly how that evidence ought to be elicited must depend on the circumstances. In the present case, what has happened is that Daisy Brown’s evidence has been given in the form of emails, which are obviously not evidence on oath or supported by a statement of truth, but they are given by a member of the bar and I am not going to impugn the veracity of a member of the bar who tells me that this is what happened (cf Appleby v Errington, per Vaisey J). As it happens, Mr Modha went into the witness box and took an oath and was indeed cross-examined, and of course I have had the opportunity therefore to consider him in somewhat greater detail than if he had simply put in the written statement. I will come back to this question later, but it seems to me that, in circumstances where Mr Modha was prepared to be cross-examined on his witness statement, I should permit that, so that is what I have done.

THE ASSESSMENT OF THE EVIDENCE

The judge then considered the evidence and concluded that the statement had been voluntarily handed to the claimant’s barrister.

1. 1. I must therefore, it seems to me, consider carefully what is common ground and what is not common ground. First of all, I bear in mind that there is a document mentioned in the defendant’s list of documents. No document can be found to correspond exactly to that description, but the draft witness statement with which I am concerned today most closely, but not completely, matches its description. No other document is known which has those details.

1. 1. The copy in the bundle is, however, of a poor quality, consistent with having been photographed on a mobile device on the day of the hearing, and it is not consistent with an original document which would have been disclosed or rather produced for inspection in the normal way had any other document been in the list of documents, so there is a tension there.

1. 1. I bear in mind also the circumstances of the hearing. These were that this was a possession claim under Part 55, and that the Brakes would have needed to put forward some idea of their defence to the district judge in order for a possession order not to be made straightaway. So it would have been incumbent on Ms Brown to explain to the judge what the Brakes’ case was. As I understand Mr Modha’s evidence, that is precisely what she did. Ms Brown says she did not actually rely on the witness statement, but that is quite consistent with what Mr Modha says about that.

1. 1. It is clear from Ms Brown, and indeed from all the circumstances, that the document in question did exist, and that she had it on that day. It is also clear that she looked at it in order to inform herself of her client’s case, which she was to present to the court. However, it is clear also from Mr Modha’s evidence that he saw that document, and that he photographed it.

1. 1. I keep in mind that it was in the Brakes’ own interest to tell AEL, and therefore their counsel, that they had a substantive defence. Conversely, it was not in AEL’s interest in fact to know that they had one, because if they knew they had one, then they would realise that the matter could not be dealt with summarily on that day but would have to go off for trial.

1. 1. I am satisfied on this material that Ms Brown did tell the judge at least the nature, the substantive nature, of the defence in order to prevent an immediate possession order being made, and also that she must have obtained that information from the draft witness statement which she had with her and which may well have been used, for example, to inform her skeleton argument, which it appears was passed to the court earlier that morning.

1. 1. However, the question is whether the draft witness statement was ever voluntarily disclosed to AEL. It is clear that it was not supplied to AEL by the solicitors, that is the evidence of Ms Burcher, and there is no suggestion from AEL that they obtained it from the solicitors. If they had, there would be some documentary record of that and there is none.

1. 1. At the end of the day, I conclude that this is a draft witness statement which has got into the hands of AEL only because it has been seen by their counsel at the hearing on 27 November. I come then to the question: did Ms Brown allow Mr Modha to read it? Mr Modha says she did. Ms Brown says she has no recollection of allowing him to see it and also that would not be her normal practice. Mr Brake’s evidence was that he did not see this happen. Yet, here, the Brakes would have had to persuade the court that they had some defence to put forward, otherwise they risked an immediate possession order.

1. 1. So, as I have said, I infer that Ms Brown told the court something of the defence, and it would have been quite reasonable in those circumstances to show the other side something beforehand to show them what was the nature of the substantive defence. I entirely accept what Ms Brown says, that ordinarily counsel do not show draft witness statements (or any draft documents) to their opponents. But in this case there was a good reason to do so, and all that Ms Brown says is that it was not her practice and that she has no recollection of doing it on this occasion. So there is not, strictly speaking, any conflict on this point between Ms Brown and Mr Modha.

1. 1. Nevertheless, my conclusion on all the material before me is that Ms Brown did lend Mr Modha her copy of this witness statement so that he could glean the substantive nature of the defence and that, he having read it, then photographed it. I quite accept that Ms Brown says she did not authorise him to photograph it, but that in a sense is water under the bridge, because in my judgment the act of deliberately showing the draft witness statement to opposing counsel is enough to waive privilege in it, and it does not much matter then whether the photographing was authorised or not.

1. 1. In any event, however, I find that Mr Modha did photograph it openly in the waiting area, although, since he was not as close to Ms Brown and to Mr Brake as he might have been, it is very possible that they simply missed this. As I say, Ms Brown’s evidence is that she did not see him photograph it, and Mr Brake’s evidence is similar.

1. 1. Then there is the further question whether the witness statement was deployed in court. I am clear in my mind that it was not deployed in the sense that it was shown to the court and the court was asked to read it and rely on it. What was deployed, of course, was the nature of the substantive defence, but I do not think that that amounts to deploying the witness statement in any meaningful sense.

1. 1. Accordingly, my conclusion is that, if this was a privileged document as a draft witness statement, compiled by the solicitors for the purposes of this hearing and compiled from information which had been provided for that purpose to them by Mrs Brake, which is more or less as she told me this morning, then privilege in that document was waived by the deliberate showing of that document by Ms Brown to Mr Modha on 27 November. The document is in the bundle, which, strictly speaking, makes it admissible in evidence under CPR Practice Direction 32, paragraph 27.2, but even if it were not admissible in evidence, there would be nothing to stop Mr Johnson from cross-examining on the document since, as I have held, privilege in it has been waived. That is my ruling.