Luckwell v Limata

In a family hearing held in public, exclusion of a prospective witness requires a judicial discretion exercised for good reason. The court may exclude a witness where doing so is appropriate to protect the quality, purity and reliability of evidence. The threshold is not high and the reason need not be especially cogent. Tomlinson v Tomlinson [1981] 2 FLR 136 was treated with respect but not followed insofar as it placed the onus on the applicant to show that exclusion was appropriate.

This was an interlocutory ruling during financial-relief proceedings after divorce. The hearing was being conducted in public under the Family Procedure Rules 2010. The wife’s father, who was a prospective witness on important disputed matters, had attended the hearing. The husband applied to exclude him during part of the wife’s cross-examination. The central issue was the scope and proper exercise of the court’s power to exclude a prospective witness.

1. The application was granted. The wife’s father was temporarily excluded during the relevant part of her cross-examination, subject to being invited back when questioning moved beyond matters justifying exclusion.
2. Rule 27.10 of the Family Procedure Rules 2010 created a starting point that proceedings were held in private, not a presumption that hearings of this kind must be private. The court could direct otherwise, and this hearing was being conducted in public.
3. Rule 27.11 applied expressly when proceedings were held in private. Its reference to a witness concerned the period when the person was actually giving evidence. Attendance at other times depended on the court’s permission. Rule 27.11(6) signposted a power to exclude witnesses until called, but did not state its source or governing test.
4. In a public hearing, a witness should not be excluded unless the court was satisfied that, for good reasons and in the particular circumstances, exclusion was appropriate. The threshold might be low and the reason need not be very cogent, but some good reason was required.
5. The quality, purity and reliability of evidence were relevant considerations. The father’s temporary absence was likely to improve the value and weight of both his evidence and the wife’s evidence, because he would not hear her account before giving his own. The court therefore reversed the onus suggested in Tomlinson v Tomlinson [1981] 2 FLR 136, which was not binding.

First-instance interlocutory ruling in financial-relief proceedings after divorce. No appeal or earlier decision forming part of the procedural history was stated in the judgment.