Versloot Dredging BV v HDI Gerling Industrie Versicherung Ag & Ors

The rule that there is no property in a witness does not create an unqualified right to pre-trial access. A witness may choose whether to assist the opposing party, but improper interference with reasonable attempts to interview a witness may amount to contempt even where the witness will give evidence at trial.

Parties and solicitors may protect genuine confidential or privileged information. They must not instruct, pressure or mislead a witness into believing that consent is required before an interview. The assessment is fact-sensitive and depends on the reality of the conduct.

The claimant sought an injunction restraining the defendant insurers and their solicitors from preventing or discouraging the claimant’s solicitors from interviewing Han Gravendeel, a surveyor engaged by the underwriters. Mr Gravendeel had investigated the casualty, prepared reports, attended meetings with the defendants and their advisers, and was expected to attend trial.

The defendants had advised him not to discuss the matter with the claimant’s solicitors, while also raising concerns about confidential and privileged communications. Various alternative arrangements were proposed, including written questions, an interview in the presence of the defendants’ solicitors, and an interview subject to an undertaking and recording. The central issues were the scope of the no-property-in-a-witness principle, the protection of confidence and privilege, and the effect of the Civil Procedure Rules.

1. Application refused. The court did not grant injunctive relief because it was not satisfied that unlawful future conduct was likely. The defendants’ later communications and proposals made it clear that confidential and privileged matters could not properly be discussed and that access to non-privileged evidence could be arranged.
2. The no-property-in-a-witness principle means that a party cannot prevent another party from calling a witness or from seeking factual information from that witness. Before trial, however, a witness who owes no relevant contractual or fiduciary duty to the requesting party has a free choice whether to co-operate. A witness cannot be compelled without a subpoena or other compulsory process.
3. The principle does not override confidentiality or privilege. Disclosure under the Civil Procedure Rules does not terminate a continuing duty of confidentiality: Porton Capital Technology Funds v 3M UK Holdings Limited [2010] EWHC 114. A witness must not reveal privileged information without waiver or an applicable exception. A party entitled to confidentiality or privilege may explain those limits to the witness.
4. Improper interference is fact-sensitive. Threats, promises, instructions not to attend an interview, or conduct suggesting that the witness requires the solicitor’s or principal’s consent may be improper. Legitimate warnings about confidentiality and privilege are permissible, but strong persuasion or pressure is not. The fact that the witness will be available for cross-examination at trial does not answer an allegation of improper interference, because relevant evidence may not otherwise be elicited.
5. The authorities concerning interference with witnesses, including R v Kellett [1976] 1 QB 372, Connolly v Dale [1996] QB 120 and Harmony Shipping Company SA v Saudi Europe Line Limited (The Good Helmsman) [1979] 1 WLR 1380, establish a wider principle but do not create an absolute entitlement to unrestricted pre-trial interviews. The CPR is a procedural code for witness evidence at trial and is not the sole source of rights and obligations concerning witnesses.
6. Mr Gravendeel was free to decide whether to be interviewed. He could disclose facts he had observed and his technical opinion, but not confidential exchanges with the defendants, their experts or solicitors. Any decision about recording or transcription was also his free choice, and the defendants could express a preference only without exerting pressure or implying that consent was required.