The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco  EWCA Civ 764.
“… whilst there may not be an absolute rule… the starting point must always be that a party is entitled to be present throughout the hearing of a civil trial.”
“The fundamental problem was that the judge did not take as her starting point that the claimants were entitled to be present throughout the trial or, indeed, give any weight to this at all in her decision. Had she done so, it is difficult to see how she could have justified making an order excluding them against their will”
- The starting point is that a party is entitled to be present throughout a trial.
- There must be a good reason to exclude a party.
- There was no good reason to exclude a claimant in the current case.
- However, on the facts of this case, the exclusion of a claimant whilst a co-claimant was giving evidence did not lead to an injustice.
The claimants were appealing adverse findings at a civil trial. One of the grounds of appeal was that the trial judge had not allowed each claimant in court whilst the other gave evidence.
THE JUDGMENT ON THIS ISSUE
Lady Justice Black considered the issue of exclusion in detail.
“The exclusion of the first claimant whilst the second claimant gave his evidence
The claimants argue that they had a right at common law and pursuant to Article 6 of the ECHR to be present throughout the trial of their claims. Although the judge ordered that each was to be out of court whilst the other gave his evidence, in the event, the second claimant (who in fact gave evidence first) was allowed to stay in court whilst the first claimant was in the witness box. This ground of appeal really centres, therefore, upon the first claimant’s position.
Mr Hogan is unable to give particular examples of how either of the claimants was actually prejudiced by the first claimant being kept out of court whilst the second claimant was giving evidence. However, he relies upon the fact that the first claimant was deprived of the opportunity to give instructions to his counsel on the evidence as it unfolded, which would have enabled points which arose to be dealt with contemporaneously. He also submits that the first claimant would have been disadvantaged by not being in court to see the second claimant give evidence and therefore having to give his own evidence “in a vacuum” or “cold”, as Mr Hogan puts it. In response to our query during the hearing as to whether he could point to any passages in the transcript of the second claimant’s evidence where, had he had immediate instructions from the first claimant, he might have been able to recover a deteriorating position, Mr Hogan said that he could not. However, in his submission, it is not necessary to do that because the point is one of principle, that is that a party should not be deprived of the right to be present throughout the hearing unless there is a good reason, and there was no good reason “
There is a detailed consideration of the authorities on the topic.
I do not read Al Rawi as authority for the proposition that in order for a party to have a fair trial, there is an absolute requirement that he or she has the opportunity to be present personally throughout the entirety of the hearing. In so far as anything said in Al Rawi does suggest that, it must be remembered that the context was a very particular one, involving a process which would have restricted the participation of a party to a far greater extent than occurred in the present case. Moreover, an absolute rule would be difficult to square with Lord Dyson’s express acknowledgement that there are classes of case where a departure from the norm may be justified for special reasons in the interests of justice. It is of note also that in the two examples that Lord Dyson gave of such cases (see my paragraph 48 above), a party was being wholly excluded from access to some of the evidence, not just excluded from the court room whilst a certain limited portion of the evidence was given but with an entitlement to be told of the evidence thereafter and, of course, to have his representative present whilst the evidence in question was given. Nevertheless, whilst there may not be an absolute rule, it is clear from both Al Rawi and the Zambia case that the starting point must always be that a party is entitled to be present throughout the hearing of a civil trial.
It is not difficult to contemplate situations in which it might possibly be necessary and permissible to proceed with a hearing without a party being present in court. I do not wish to attempt a catalogue of them. A not uncommon example is where a party is refused an adjournment and then simply fails to attend the hearing. Other examples may range from the litigant who disrupts the hearing by unruly behaviour and has to be excluded to allow any progress to be made, to the sort of practical problem that arises where a party has to leave for personal reasons just before the end of the evidence of a witness whose evidence cannot be held over to another time. Having said that, Judge Baucher’s order excluding the first claimant from part of the hearing in this case was, in my view, an order that should not have been made.
The fundamental problem was that the judge did not take as her starting point that the claimants were entitled to be present throughout the trial or, indeed, give any weight to this at all in her decision. Had she done so, it is difficult to see how she could have justified making an order excluding them against their will. Her reasoning was sparse and gives little clue to her thinking as to how precisely the order would assist matters. It might have been, for example, that she made it in order to improve the prospects of effective cross-examination by the insurance company or to avoid there being any suggestion that one claimant’s evidence had been tailored to what he had heard the other claimant say in the witness box. However, for myself, I find it extremely difficult to contemplate there being any sufficient reason for taking this course in a case such as the present one. At the very least, it was likely to leave the first claimant with a sense of injustice, and it risked the entire trial being impugned on the basis that the exclusion of the claimant had rendered it unfair. In short, it was a wrong order.
However, I do not see the exclusion of the claimant as automatically fatal to the entire trial. It seems to me that the fairness of the hearing depends upon the proceedings as a whole. This is the approach of the European cases and the Zambia case seems to me to be saying much the same thing in the domestic context (see particularly paragraph 44 cited above at my paragraph 50). It does mean, however, that the proceedings as a whole have to be scrutinised very carefully in order to ascertain whether the hearing was unfair in the light of what occurred.
I do not think that it was. This was not a case of a claimant being excluded from court whilst an opposing party or an opposing party’s witness gave evidence; both claimants were represented by the same counsel and were telling essentially the same story, the elements of which they knew from the witness statements each had filed. The first claimant did lose the opportunity to learn from observing the second claimant giving evidence what to expect when it came to his turn, but then someone had to go first in any event and a claimant will not usually have the opportunity to observe before giving evidence. In addition, as Mr Hogan submits, he lost the opportunity to give instant instructions that might have shaped Mr Hogan’s response to points that arose in the course of the cross-examination, and to do so spontaneously if Mr Hogan did not have the personal knowledge of events that would have enabled him to recognise that there was a point on which he might need instructions. However, in the context of a simple accident claim such as the present one, where witness statements had been provided, it seems to me unlikely that material points would have arisen without Mr Hogan recognising that he needed to take instructions from the first claimant about them. He made no application at the end of the cross-examination of the second claimant or at the conclusion of his evidence to be allowed to take instructions from the first claimant. No doubt, if he had, the judge would have given careful consideration to such an application, given that she did not appear to intend that the first claimant should be in ignorance of what the second claimant said in oral evidence; it can be seen from the conclusion of her short judgment on the subject that she envisaged the claimants applying for a transcript of the evidence if they felt there was prejudice to them from the course she had taken. Furthermore, it is very important in my view that, even with the benefit of hindsight and the opportunity to discuss matters with the first claimant in the light of the transcript, Mr Hogan does not point to any part of the transcript where things would, or even might, have been different had the first claimant been in court during the second claimant’s evidence.
Mr Hogan does make the specific complaint that, as can be seen from the transcript, he asked for five minutes to explain the significance of the decision to his client, but was only allowed to take a short time to explain it in the court room whilst the judge remained in court. There was, however, a five minute break not long after that for the interpreter and, in due course, a lunch break whilst the second claimant was still being cross-examined. Mr Hogan could have asked to take advantage of those breaks to discuss matters further with the first claimant if he had felt he needed to do so. Accordingly, I am not persuaded that unfairness arose from this.
A similar issue (relating to the exclusion of witnesses) was considered by the High Court in