In two different cases in different courts and tribunals the same issue has arisen: what to do with a witness who, during a break whilst they are giving evidence, talks about their case in disregard to the judge’s prohibition to do this.
The Employment Appeal Tribunal addressed this issue in Chidzoy v BBC; whereas the Court of Appeal, in a civil landlord and tenant case, dealt with a similar issue last week in Hughes Jarvis Limited v Searle and another.
The statements made and questions asked by Judges before and after breaks in the day’s events are not merely pleasant niceties enquiring about the witnesses’ social activities, but carry with them a real purpose that can lead to cases being struck out and criticism of the advisors.
If a witness is part-way through giving their evidence when a break is taken, be it a short comfort break, a lunch break or for the tribunal rising until the next day’s sitting, the Judge will remind the witness not to discuss the matter with anyone. This is how the Judge put it in Hughes:
“I have to give you the same warning that I give every witness who has a break halfway through their evidence, which is that it is extremely important that you do not speak to anybody about the evidence you have given or the evidence that you are about to give during this short break. That includes your legal advisers, that includes anyone on the phone, that includes yourwife if she phones up. Just say: “I can’t talk about it”. Do notdiscuss any evidence, all right? Just for this short break.”
Many Judges, after the break, will remind the witness they are on oath and ask them to confirm whether they have spoken to anyone at all about the case. usually the witness confirms that they have not.
The purpose of this is, as the Court of Appeal note in Hughes:
Witnesses are commonly given warnings by the trial judge not to discuss their evidence until after it has been completed. The purpose of the warning is to protect the witness from any attempt by a third party to influence their evidence and also to ensure that, so far as possible, the evidence which the witness gives is his or her own best recollection unassisted by any other person. Compliance with the warning both protects the witness and the effectiveness of the trial process.
Even if the Judge does not do this, any representative of the party who is calling the witness should consider saying this in the presence of the court.
A breach of this prohibition can result in striking out the claim when if transpired that over a break.
The tribunal’s power to strike out claims is contained within r37 Sch 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The case law under this rule and its predecessors shows that striking out of claims is a draconian step and one that, effectively, should only be taken if there are no other steps that could be taken which would ensure a fair hearing.
The Employment Tribunal Decision
In the matter of Chidzoy v BBC, heard at the Cambridge ET in February 2017, the Claimant, Sally Chidzoy a Home Affairs Correspondent for the BBC Look East, had presented claims of sex discrimination and victimization.
The matter was to take 11 days and towards the end of giving her evidence she was heard during a break, and after receiving the usual warning about not talking to people about the claim in the form of “firm, clear and unequivocal” instructions from the Employment Judge, speaking to a reporter and heard to refer to phrases that only could have come from her evidence.
The conversation was observed by the Respondent’s solicitor and witnesses, and showed a “disregard for the Tribunal’s clear instruction” it was, therefore unreasonable conduct.
This was not the end of the matter though and the tribunal, in paragraph 40 of its judgment, as it should have, went on to consider whether a fair trial was still possible. It found it was not as the “trust which the Tribunal should have in the Claimant has been irreparably damaged”, comment was also made by the tribunal as to the “doubtful veracity: of the report of events that it received from the Claimant’s representative which altered significantly between [the day the incident occurred and the next day the tribunal was to sit]”
The tribunal applied its mind to restarting the hearing but rejected this option as the Claimant had almost completed her evidence in what was to be a lengthy hearing.
The Claimant appealed
The EAT Hearing
The appeal came before Her Honour Judge Eady who handed down judgment on 5thApril 2018. She found that the Employment Tribunal had correctly applied the relevant law, and had come to conclusions it was entitled too on the evidence before it. It have appropriately considered whether a fair trial could be held.
Despite the clear warning given by the Judge in this matter Mr. Jarvis, whilst subject to the prohibition, send his legal advisors a number of emails over night and had spoken to another person about his evidence.
Mr Jarvis was remanded in custody in prison until the contempt hearing the next day at which he was sentenced to 14 day in prison, suspended for three-months.
On appeal the Court of Appeal overturned the County Court’s decision finding it had no power to commit Mr Jarvis to prison and that the findings of the Judge did not support a striking out of the claim.
These are a real reminder that even though the employment tribunals try to achieve a certain level of informality (indeed the Overriding Objective necessitates removing “unnecessary formality”) the giving of evidence and obligations that are imposed upon witnesses by that action are incredibly important and can go to the heart of the inherent trust tribunals must have in all parties when the hearing begins; if that trust is broken during the hearing then the results can be catastrophic for parties.
The Appeal Tribunal’s decision also shows that it will defer to factual assessments made by the Employment Tribunal unless there is a clear error of law in those conclusions.
It may be thought that little can be done to control the actions of grown adults, however their advisers can take steps to ensure the risks are minimised, especially for themselves, as the advisers at the tribunal in Chidzoy came in for criticism.
Relevant practical steps can include:
- advising clients in advance of the hearing of the prohibition and explaining what this means, so it does not come as a shock for them;
- underlining to the client the importance of the prohibition and the effects of breaking it;
- telling the client when leaving the tribunal room that they will not be spoken to and should not be spoken to about the case.
Some E.J.’s make it personal so as to make it easy to avoid the witness feeling awkward if faced by a family member asking how their day was, by telling the witness to say the “judge tells me I cannot talk about it”, this is a tip the advisor may wish to adopt, especially if they produce a written guide to tribunal hearings that some of the firms do to assist the witness understand the (sometimes) alien system they are about to experience.