The Commercial Court has held in Versloot Dredging BV v HDI Gerling Industrie Versicherung AG and others (2013) that it may be a contempt of court to prevent a witness from attending an interview with the opposing solicitor, and this applies to expert witnesses as well as witnesses of fact.
The Defendant underwriters engaged a surveyor to determine the cause and extent of damage to the Claimants' vessel. This loss expert attended the vessel at the port where repairs were undertaken, interviewed the crew, surveyed the vessel and produced a detailed survey report to the Defendants in December 2010. The Claimants had no surveyors themselves, but had unfettered access to the expert during this period, and a copy of the survey report was disclosed to them.
In October 2012 the Claimants wished to interview the expert to obtain his factual evidence and technical judgment on a wide range of topics. They also wished to do so otherwise than in the presence of the Defendants or their solicitors, out of concern that the Defendants may learn from the questions something of the Claimants' thinking about the case which would be privileged.
The expert contacted the Defendants' solicitors to ask whether he could agree to such an interview. They responded that it would be inappropriate in circumstances where the expert was engaged by the Defendants to provide not only factual evidence but also technical evidence. They suggested, among other things, that the expert could be interviewed as long as they were present, or alternatively without them present if the Claimants undertook not to trespass into matters which might be subject to confidentiality or privilege.
The Claimants sought an injunction requiring the Defendants to withdraw their instructions to the expert and to refrain from seeking to restrict or impede the Claimants' access to the expert. They argued that, as there is no property in a witness, they were entitled to free and unimpeded access to the expert, and any interference from the Defendants was a contempt of court.
The Court reiterated that it is a recognised legal principle that there is no property in a witness: it is open to a solicitor for either party to interview and take a statement from any witness or prospective witness at any stage of the proceedings (and under subpoena if necessary). This is because the primary duty of the court is to ascertain the truth by the best evidence available.
Accordingly, it may be a contempt of court to interfere with attempts by the other side to interview a witness, or to prohibit the other side from getting facts from him. However, such contempt will only arise if the interference is improper. In this instance, the Defendants' interference was not improper. They were entitled to raise legitimate concerns about questions of confidence and privilege, and indeed to tell the expert that he was not at liberty to break any confidence that he owed to them or to reveal privileged information.
The Court held that no injunction was necessary, and that the expert was free to give evidence to, and be interviewed by, the Claimants' solicitors, as long as he did not reveal any confidential or privileged information.
The Court stressed that what constitutes improper interference with a witness is fact-sensitive, and it is not possible to be prescriptive. In practice, the Court will look at the reality of what has occurred to determine whether any form of improper pressure has been applied to the witness.
However, the Court provided some useful guidance on what a solicitor or a party is not entitled to do. It should not:
- order or instruct a witness or a potential witness not to attend an interview with the opposing solicitor;
- tell the witness that he has no real choice in the matter;
- put pressure on the witness not to comply; and
- make it appear that the witness can only be interviewed if the solicitor or his principal consents.
Instead, a witness should be advised that whether or not he is interviewed by the other side is something for him to decide, and he should not regard himself as being under any instruction not to be interviewed. If he attends such an interview, he may take notes of the interview and reveal them to his instructing party or solicitors (presumably subject to confidence and privilege obligations to the interviewing party). The only qualification is that he is not at liberty to reveal confidential or privileged information in relation to which he owes duties to his instructing party.