In a recent decision, the High Court has commented on the approach that should be adopted in exercising the court’s discretion to exclude a witness from court before giving evidence:Luckwell v Limata  EWHC 536 (Fam).
In civil cases it is quite normal for witnesses to attend trial and hear other witnesses being cross-examined. The present decision is of interest as there is very little authority regarding the circumstances in which a witness should be excluded. Although this was a family case, the judge stressed that the same approach should apply to both civil and family cases which are (as this one was) heard in public.
Although the judge said the court should only exclude a witness if satisfied that it would be an appropriate step to take in the particular circumstances, he added that the threshold “may not be a high one”. In the present case it was appropriate to exclude the witness because there were issues of fact on which the evidence was still obscure and, the judge said, the evidence would have greater value if the witness was not able to hear certain other evidence before giving his own evidence.
This was an application for financial relief after divorce. The judge (Holman J) had directed that the case should be heard in public. The assets under discussion in the case had derived originally from the wife’s parents, in particular a valuable house in Connaught Square, and the parents were also supporting the wife and children by making substantial payments. The wife’s father had said in a written statement that, if the wife was forced to sell or raise money secured upon the Connaught Square property, he would terminate his financial support.
The wife’s parents had been present in court through most of the hearing. However, the husband’s counsel made an application that, for part of the wife’s cross-examination, the judge should exercise a discretion to exclude the father from being present in court.
The judge granted the application.
Counsel had not been able to identify any rule of the Civil Procedure Rules or any passage in The White Book commenting on the presence of one prospective witness in the courtroom while another witness gives evidence. The only authority identified that touched on the point was Tomlinson v Tomlinson  2 FLR 136. In that case Sir John Arnold (President of the Family Division) said that, although witnesses should not be obliged to leave the court unless an order was made excluding them, if an application was made to exclude a witness the proper course would be to grant the order unless satisfied that that would not be an appropriate step to take.
The judge in the present case took the view, however, that the onus should be reversed:
“But it should only exclude them if the court is satisfied, on the facts and in the circumstances of the particular situation, that it would, for good reasons, be an appropriate step to take. The threshold may not be a high one. The reason may not need to be a very cogent one. But if a court is sitting in public, no one who wishes to be present should be excluded, not even a witness, without some good reason for doing so.”
He commented that there could not be any rational grounds for distinction between cases heard in the family or civil courts. The court’s broad approach to the exercise of discretion should be the same whenever the court was sitting in public.
On the facts of this case, however, the judge concluded that it was appropriate to exercise his discretion to exclude the father. He said his focus was on the quality, purity and reliability of the evidence which he had still to hear. There were issues of fact on which the evidence was still obscure. In the judge’s view, the evidence of each of the wife and, more particularly, her father would have greater value as evidence if the father was not able to hear what she had said before giving his own evidence.