The claimant ship owner in Versloot Dredging BV v HDI Gerling Industrie Versicherung AG and others [2013] EWHC 581 sought an injunction against the defendant insurers and their solicitors to prevent them from allegedly seeking to impede the claimant’s access to the defendants’ surveyor for the purpose of obtaining evidence and information from him. On the defendants’ instructions the surveyor surveyed the vessel following a casualty, interviewed the crew, reviewed repair options, attended meetings at the claimant’s office and liaised with average adjusters. He prepared two preliminary reports and a further detailed report, all of which were shared with the claimant, who had not appointed its own surveyor. Throughout this process the claimant had unfettered access to the surveyor.

The surveyor then attended meetings with the defendants’ solicitors and experts during which he discussed the factual background to the case and provided technical input and his opinion on various matters. Consequently, he was privy to “privileged trains of enquiry and thought processes” which attract litigation privilege.

Following disclosure and exchange of witness statements, the claimant’s solicitors sought to arrange a meeting with the surveyor to gain his factual evidence and technical judgment on a range of matters. The surveyor asked the defendants’ solicitors whether he could attend. The defendants’ solicitors responded noting that whilst there was nothing to stop the claimant’s solicitors from approaching him, the surveyor should appreciate that he had been appointed by the defendants to provide not only factual but also technical evidence and it would be inappropriate for the claimant’s solicitors to question him about the latter. They provided the surveyor with a draft message to send to the claimant’s solicitors explaining that they had asked him to decline the interview request.

The defendants were concerned that the surveyor (who was Dutch and not legally qualified) may not appreciate the niceties of English law of privilege and considered that the appropriate time and place for the claimant to question him was during cross-examination at trial, at which time the judge would protect him from being compelled to breach privilege or confidence.  

The defendants’ solicitors offered various options to the claimant’s solicitors. They invited them to address any questions of fact they wished to put to the surveyor to the defendants’ solicitors. Alternatively they suggested that the claimant’s solicitors meet with the surveyor in their presence. Finally, they offered to seek the defendants’ agreement for the claimant’s solicitors to interview the surveyor without the defendants’ solicitors present, provided that the claimant’s solicitors undertook not to discuss matters that might be subject to confidentiality or privilege and agreed to provide a full note or recording of the interview.  

No agreement was reached and so the injunction application went to a hearing. The claimant’s solicitors relied on the maxim that there is ‘no property in a witness’ and argued that any attempt to prevent them having “free and unimpeded access” to the surveyor amounted to a contempt of court.

The judge said that consideration needed to be given as to what the maxim meant in light of other relevant considerations such as questions of confidence, privilege, the position of the witness himself and the impact of the Civil Procedure Rules. He held that it may be a contempt to interfere with attempts to interview a potential witness or to prohibit the other side from obtaining his factual evidence. Whether or not there was a contempt would depend on whether the interference was “improper”. This was “fact-sensitive” and the court would need to look at the “reality of what has occurred”. Because of this, he noted, it was not possible to be prescriptive as to what circumstances would, and would not, constitute improper interference.  

He did, however, cite some scenarios which would constitute improper interference. Threats or promises made to persuade a witness to decline an interview with the opposition (or its solicitor) would be improper, as would an order or instruction not to attend such an interview. Likewise it would be improper to tell a witness that he has no real choice in the matter or to make it appear that he can only be interviewed if the principal or its solicitor consents. The position is that, before trial, whether or not a witness chooses to cooperate with either party (absent a witness summons) or any relevant contractual or fiduciary obligations) is a matter for the witness. On the other hand, a party to whom obligations of confidence are owed, or who is the beneficiary of legal privilege, is entitled to raise legitimate concerns about questions of confidence and privilege and to tell a witness that he may not reveal information which is truly confidential or privileged. Further, a party (or its solicitors) is entitled to express a point of view or a preference so long as it does not amount to pressure and remains apparent that the witness has a free choice on the matter.  

Applying these principles to the facts, the judge held that the conduct of the defendants and/or their solicitors in this case did not amount to a contempt.  

Comment

Litigants and their legal representatives should tread carefully when seeking to balance the competing interests of free access to witnesses on the one hand and the legitimate concerns of confidentiality and privilege on the other.