The Commercial Court has held that it may be a contempt of court for a party to litigation to seek to prevent a witness or potential witness from attending an interview with the opposing solicitor, and this applies to both witnesses of fact and expert witnesses: Versloot Dredging BV v HDI Gerling Industrie Versicherung AG and others  EWHC 581 (Comm).
The judge (Christopher Clarke J) said that it must be clear to the witness that he or she has a free choice in the matter. Although it is permissible to express a point of view or preference, this must not amount to pressure. Any form of “strong persuasion” should be avoided, as it is liable to be indistinguishable from improper pressure. It is however permissible to raise legitimate concerns about confidentiality and privilege, and to tell the witness that he is not free to reveal that party’s confidential or privileged information to the opposing party.
The defendant underwriters engaged a surveyor, G, to determine the cause of damage to the claimants’ vessel and the extent of the loss. G attended at the port where the vessel was being repaired, interviewed the crew and surveyed the vessel. The claimants had no surveyors themselves but had unfettered access to G. G produced a detailed survey report to the defendants, which was disclosed to the claimants. The defendants also served a short witness statement from G confirming his attendance and that he had made two preliminary reports before his detailed survey report.
The claimants wished to interview G to obtain both his factual evidence and his technical judgment on a range of matters. Their solicitors approached G for this purpose. G contacted the defendants’ solicitors to ask whether he could agree to such an interview. They responded that it would be inappropriate in circumstances where he was appointed by the defendants to provide not only factual evidence but also technical advice.
The claimants sought an injunction preventing the defendants from seeking to impede the claimants’ access to G for the purpose of obtaining evidence and information from him. After the application was made, the defendants made various offers, including that the claimants could meet G with the defendants’ solicitors present, or alternatively without them being present if they undertook not to trespass into matters that might be subject to confidentiality or privilege and agreed to provide a full transcript or recording of the interview.
The judge outlined a number of principles:
- Because there is no property in a witness, party A cannot prevent party B calling as a witness at trial (under subpoena if necessary) a witness from whom party A has obtained a statement or intends to call himself.
- Before trial, whether or not a witness chooses to cooperate with either party (absent a subpoena or any relevant contractual or fiduciary obligations) is a matter for the witness.
- A witness, once called at trial, may be required to give evidence that would otherwise be confidential. However, that does not mean that he is entitled to do so before trial – see post on Porton Capital Technology Funds v 3M UK Holdings Limited  EWHC 114 (Comm).
- Nor, whether before trial or at trial, is a witness entitled to reveal a party’s privileged information.
Applying these principles to the facts of the case, the judge held that it was not necessary to grant injunctive relief but confirmed that G was free to give evidence to, and be interviewed by, the claimants’ solicitors so long as he did not reveal confidential or privileged exchanges with the defendants. This would not however prevent G informing the claimants’ solicitors of facts or technical opinions simply because he had also told the same facts or expressed the same opinions to the defendants’ solicitors.
It was for G to decide whether or not to attend such an interview. The defendants or their solicitors could express a point of view or preference, but “it must not amount to pressure, it must not indicate that their consent is required, and it must be apparent that the choice is … a free choice, and that the choice is his”.
This decision does not establish new law, but does give helpful clarification of the oft-cited principle that there is no property in a witness and the limits of that principle as regards protection of confidential and privileged information.