A Judge sitting at Oxford County Court struck out a claim after the litigant contravened orders not to contact his lawyers mid-evidence. The witness emailed his solicitors, counsel and spoke to a third party whilst in the court giving evidence.
In this case, Her Honour Judge Clarke struck out the Claimant’s claim and the third party Mr Jarvis’s defence to counterclaim pursuant to Civil Procedure Rule 3.4(2) on the grounds that Mr Jarvis was found guilty of three counts of contempt. Whilst in the process of giving evidence, Mr Jarvis emailed his solicitor, counsel and called a third party, which he claimed he did to ‘clarify the evidence’ he had already given. He had been repeatedly told by the Judge that he was still in purdah and as such was not permitted to communicate with anyone in reference to his evidence whilst it was being considered by the court.
The Applicant Defendant in this case submitted a plea for the court to strike out the Claimant’s claim and his defence to counterclaim on four grounds. These centred on the fact that a court has the right to strike out a claim when a Claimant’s contempt is such that it risks the fairness of the trial.
Mr Hyams, counsel for the Applicant Defendant, relied on Chidzoy v The British Broadcasting Corporation UKEAT/0097/17/BA (2018) in which the Employment Appeal Tribunal struck out the claim when the Claimant was found to have discussed their evidence with a journalist during a break in proceedings. The Tribunal found with their trust in the Claimant lost, they had no choice but to strike the claim out. There are a number of considerations which a court should make according to HHJ Jennifer Eady QC in Chidzoy v BBC. Put simply, when trying to determine whether a party is in contempt, a court must consider whether:
Chidzoy v BBC
- The party which has been found to be in contempt has caused the proceedings to be unfair;
- Whether the fairness of the trial can be redeemed by any reasonable measures;
- If a trial cannot be continued as fairness cannot be guaranteed, whether a strike out is the most proportionate response and what alternatives might be met;
- As a consequence of the strike out of the claim, what then should be allowed i.e. should a remedies hearing be afforded to the parties etc.
offered HHJ Clarke these considerations when making her judgment; however she made it plain that, whilst the conduct of the Claimant’s counsel in Chidzoy
was criticized, in this case she does not make any criticisms of the counsel for the Claimant, Miss Toman, or the instructing solicitors.
HHJ Clarke submitted that were it to have been the first two counts of contempt, the trial could have continued since the emails sent by Mr Jarvis to his solicitor and Counsel were left unread and returned. It was the third discrepancy in the form of a phone call to a third party which risked the credibility of the trial, calling to question the honesty of Mr Jarvis as a witness. HHJ Clarke did not feel she could reasonably deduce which aspects of Mr Jarvis’ evidence could be used in support of the Claimant’s claim or the counterclaim compared to those which were in fact tainted by his communications. As a result, both were struck out, resulting in success on the part of the Applicant Defendant.
The Defendant is in the process of bringing a counterclaim for damages.
Legal representation for the Applicant Defendant included Manjinder Kaur Atwal
, of Duncan Lewis, and Oliver Hyams, of Lamb Chambers.
Director, Manjinder has over 10 years’ experience in housing and property litigation law, dealing with a wide variety of dispute cases including possession claims and eviction matters, landlord and tenant disputes, homelessness, housing disrepair, bringing Judicial Review matters, review/appeals relating to local authority housing decisions, bringing and defending injunctions, boundary disputes, property nuisance/negligence claims, consumer and contractual matters, debt recovery and enforcement.
Contact Manjinder on 020 3114 1269, or via email on email@example.com.
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