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Removing a witness from court in fraudulent claims

05-January-2017 9:59
in Procedure
by Christopher Hanges

Christopher Hanges considers the case of Da Costa and Another v Sargaco and Another [2016] EWCA Civ 764.

Witnesses and parties are frequently being excluded from County Court sessions across the country when another witness or party is giving evidence in cases when there are accusations of collusion or fraud. The fear is that if Witness A hears the responses of Witness B, Witness A may shape his/her evidence to be consistent with that of Witness B in order to strengthen their case.

The case of Da Costa involved an accusation of a staged road traffic accident; it was alleged that the first claimant and first defendant knew each other. At trial, whilst the second claimant gave evidence, the judge removed the first claimant from the court room but the judge did not apply the same rule the other way around. The claimant’s claims were dismissed and the judge found: the claimants’ evidence "so inconsistent as to be implausible" and held that they had failed to prove their cases. As the judge found their claims to be "manufactured or fraudulent", they were dismissed and the claimants ordered to pay the defendant's costs on an indemnity basis.

The claimants appealed and argued that it was not open to the judge to make this decision and that, as each claimant was not only a witness in the proceedings but also a party to them, he had a right, at common law and pursuant to Article 6 ECHR, to be present for the whole of the trial.

In short, the court of appeal held that prima facie a party to a civil hearing has the right to be present for the duration of the trail, unless there is good reason to depart from the initial position. The difficulty in this matter was that the judge sitting in on the trail did not appear to have any regard to that initial position and subsequently, removed the first claimant from the court without giving specific reasons for doing so. The court of appeal did not find that it was suitable for the first claimant to be removed, Lady

Justice Black explained:

“However, for myself, I find it very 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 rendered it unfair. In short, it was the wrong order.”

The court of appeal found that no prejudice was caused to the first claimant as a result of excluding him from the court room and it can be distinguished from a case where a party is excluded from hearing the opposition’s evidence. As no prejudice had been caused, the Court of Appeal did not agree that the trial process was unfair.

It is apparent that the Court of Appeal considers that (a) removing a party from a trial should not be done unless there is good reason, however (b) a removal without good reason will not render the trial process to be unfair unless prejudice is caused to the party removed.


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