The defendants had engaged an expert witness, and he had undertaken investigations at the claimant’s premises. The claimant now sought an injunction to restrain the defendants from preventing the expert talking to them independently of the defendants or their solicitors, or in the alternative to withdraw their instructions. The defendants argued that as a provider of ‘technical evidence’ any meeting should be in their presence. The claimants argued that there was no property in a witness.
Held: The injunction was refused. Whilst each situation had to be examined on its own, and a solicitor might properly seek to protect materials disclosed under a confidence: ‘What a solicitor is not entitled to do, or indeed a party, is to order or instruct a witness or a potential witness not to attend an interview with the opposing solicitor or to tell him that he has no real choice in the matter, or to put pressure on him not to comply. Nor must he make it appear that the witness can only be interviewed if the solicitor or his principal consents.’
The situation was novel, but demonstrated a wider principle: ‘that it may be a contempt to interfere with attempts to interview a potential witness, or to prohibit the other side from getting the facts from him. Whether or not there is a contempt depends on whether the interference is improper. If it is, it does not cease to be so because the witness in question is scheduled to appear at the trial at the behest of the opposing party and may be subject to cross-examination thereat.’ After examining the authorities, Clarke J said: ‘ Improper interference with access to a witness may mean that, although the witness is called at trial, the entirety of the evidence that he could give is not in fact elicited, because it has not been elicited by the party who called him, and because the opposing party was not aware, or not fully aware, that that witness had such evidence to give, with the result that the best evidence is not available to the court. That seems to me good reason for not confining the dicta in these cases to circumstances in which the witness in question is not to give evidence at trial.’
Christopher Clarke J
[2013] EWHC 581 (Comm)
Bailii
England and Wales
Citing:
Cited – Regina v Kellett CACD 1976
The defendant saw disparaging statements made about him by neighbours in the course of divorce proceedings. He wrote to them and asked them to withdraw the statements they had made and threatened proceedings for slander. He was charged with . .
Cited – Porton Capital Technology Funds and Another v 3M UK Holdings Ltd and Another ComC 2-Feb-2010
The confidentiality obligation owed by a witness engaged by a party does not cease following disclosure in accordance with the CPR . .
Cited – Connolly v Dale QBD 11-Jul-1995
The applicant defendant’s enquiry agent was prevented by officers responsible to Detective Superintendent Dale from identifying and interviewing potential witnesses for trial who might support his alibi. When the agent had sought to show a . .
Cited – Harmony Shipping Co SA v Saudi Europe Line Limited (‘The Good Helmsman’) CA 1979
One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial.
Held: There is no property . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Evidence
Leading Case
Updated: 11 November 2021; Ref: scu.472078
