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11th July 2018

Listen to the judge

David Patterson, partner in Thrings’ Company Commercial team, assesses the case of Hughes Jarvis Limited v Searle, which was struck out by the court after a witness was found to have communicated with the claimant’s lawyers.

Mr Jarvis had been giving evidence for the claimant. His cross-examination had not been completed by the end of the court day, and in accordance with the normal rule, was in purdah overnight until returning to the court the following day. This meant he was not permitted to discuss the case with any third party, including his solicitors.

The trial judge, Her Honour Judge Clarke, warned Mr Jarvis not to communicate, save to identify one document, being a plan to clarify his evidence.

Unfortunately Mr Jarvis did not heed the warning. Overnight he sent numerous emails to both his solicitors and counsel. He also discussed the case with one of the litigation funders “to clarify the evidence”.

The following day counsel for the claimant informed HHJ Clarke as to emails sent to her. The cross-examination was allowed to continue, whereupon it was established that Mr Jarvis had also sent documents to his solicitors, and discussed his evidence with one of the funders by telephone. HHJ Clarke commented that Mr Jarvis’s conversation with the funder had “tainted” his evidence. The emails sent to both counsel and solicitors had not been read or shown to the court.

HHJ Clarke found Mr Jarvis guilty of three counts of contempt in attempting to communicate with his counsel and solicitors by email, and for speaking to the funder by telephone. Mr Jarvis had breached the specific oral order made by the judge. He was remanded in custody in prison overnight prior to the hearing of the application to strike out and sentencing for contempt.

While accepting that strike out was “draconian” and “a last resort”, HHJ Clarke decided the telephone call jeopardised the fairness of the trial, and that it would be “an affront” to the court to permit Mr Jarvis to continue because a fair trial was no longer possible. She acceded to the defendant’s application to strike out the claim and to the defence to counterclaim. He was satisfied that Mr Jarvis was guilty of “…extremely serious misconduct”.

In summary, a witness must comply with the specific order of the judge if in purdah whilst giving evidence. If not, the consequences may be dire, including, in some cases, a stay in prison at Her Majesty’s pleasure.

For help and advice on dispute resolution issues, please contact David Patterson.

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