The Court of Appeal found that a judge had been wrong to make an order excluding one claimant from court while the other claimant gave evidence, despite allegations that the claim was fraudulent. However, the order did not render the proceedings as a whole unfair and, therefore, a retrial was not necessary: Da Costa and another v Sargaco and another  EWCA Civ 764.
This contrasts with Tuckwell v Limata  EWHC 536 (Fam) in which the High Court concluded that there were good reasons for excluding a father from court while his daughter (the claimant) gave evidence: there were issues of fact on which the evidence was still obscure and the father’s evidence would have greater value if he was not able to hear what his daughter said before giving his own evidence (see our blog post on that decision).
The present decision suggests that courts will be less willing to exclude a witness where he or she is also a party to the proceedings. The Court of Appeal held that a party did not have an absolute right to be present for the entirety of the hearing but the starting point is that he or she should be entitled to be present. The difference in approach can be justified by the need to ensure that the party receives a fair trial and that justice is seen to be done.
The practical message is that parties should be cautious in seeking to exclude an opponent from court for part of a trial unless strong reason can be shown for adopting such a course. Although in this case the Court of Appeal found that the exclusion did not render the proceedings unfair, there is clearly a risk that, in other circumstances, a retrial may be ordered. Gary Horlock, an associate in the disputes division, considers the decision further below.
The claimants, two individuals, claimed that their motorcycles had been damaged by a car driven negligently by the first defendant. The claim was defended by the second defendant (the driver's insurance company) on the basis that the claims were fraudulent.
At the outset of the trial, the insurance company made an application for each of the claimants to be excluded from court while the other gave evidence on the basis that fraud was alleged and the credibility of the claimants was in issue. The judge (HHJ Baucher in the Central London County Court) granted the application. In the event, the first claimant was excluded during the second claimant's evidence but not vice versa.
The judge dismissed the claims, finding that the claimants had failed to prove their cases and that their claims were fraudulent. The claimants appealed on a number of grounds, including that the judge had been wrong to make an order excluding them from court during the other’s evidence and that the order breached their rights at common law and pursuant to Article 6 of the ECHR.
The Court of Appeal allowed part of the appeal relating to the findings of fraud against the claimants (which is not considered further in this post) but otherwise dismissed it. In reaching its decision, the Court of Appeal found that the judge had been wrong to make an order excluding each claimant from court during the other’s evidence but that this did not render the proceedings as a whole unfair.
Black LJ found that it was not an absolute requirement for a party to have the opportunity to be present throughout the entire hearing. However, it is clear from the authorities that this should always be the starting point in civil cases (The Attorney General of Zambia v Meer Care & Desai (a firm) and others  EWCA Civ 390 and Al Rawi and others v The Security Service and others  UKSC 34).
Black LJ went on to state that it is not difficult to contemplate situations in which it might be permissible to proceed with a hearing without a party being present, for example where the party is refused an adjournment and simply fails to attend. However, it was difficult to see how the judge could have justified an order excluding the claimants against their will in the present case. The judge’s reasoning was sparse and gave little clue to her thinking as to how precisely the order would assist matters. The order might have been made to avoid there being any suggestion that the claimants had tailored their evidence to what they had heard the other claimant say, but it appears that Black LJ would not have considered this a sufficient reason. Indeed, she found it “extremely difficult” to contemplate any sufficient reason for making the order in the present case bearing in mind that it was likely to leave the claimants with a sense of injustice and risk the entire trial being impugned on the basis that it was unfair.
Black LJ went on to consider whether the exclusion of the first claimant meant that the trial was unfair, and concluded that it did not. She noted that the claimant was not excluded from court while an opposing party’s witness gave evidence and that, even with the benefit of hindsight and a transcript of the evidence, the claimants were not able to point to any part of the proceedings that would have been different if the first claimant had not been excluded. Therefore, it was not necessary to order a retrial.