Hughes Jarvis Ltd vSearle & Anor

A judicial warning that a witness must not discuss unfinished evidence does not, without clear language, constitute a court order enforceable by committal. If an enforceable order is intended, the witness must be told its precise terms and the consequences of breach.

Suspected interference with a witness’s evidence calls for a measured investigation. Summary committal on the court’s own motion is reserved for cases where immediate action is urgent and imperative, and procedural safeguards remain essential.

Striking out during trial is exceptional. Misconduct warrants that response only where it makes a fair determination practically impossible or creates a substantial risk of injustice. Evidential weakness or misconduct affecting a discrete issue should ordinarily be addressed through assessment of weight and judgment on the merits.

The claimant landlord sought possession of a protected tenant’s flat so that a redevelopment could proceed. The tenant resisted possession and counterclaimed against the landlord and its director. During the director’s unfinished evidence, the trial judge warned him not to discuss his evidence. He nevertheless emailed his lawyers and spoke to an adviser for a lender about the likely consequences if possession were refused.

The Oxford County Court treated the warning as an order, found the director in contempt, remanded him in custody overnight and later imposed a suspended sentence. It also struck out the possession claim and the defence to the counterclaim, entering judgment for the tenant.

The director appealed the committal orders as of right. The landlord and director appealed the strike-out orders with permission. The central issues were whether the County Court had jurisdiction to commit, whether the procedure was fair, and whether the witness’s conduct justified terminating the trial.

1. All appeals were allowed. The committal and strike-out orders were set aside. The claim and counterclaim were transferred to the Central London County Court for directions and a new trial before a different judge.

2. Per Patten LJ, with whom Leggatt LJ and Nicola Davies LJ agreed, the ordinary warning given to a witness not to discuss unfinished evidence was not a court order. The judge neither stated precise enforceable terms nor warned that breach could result in committal. Even if the warning had been an order, unanswered emails did not amount to discussing evidence and fell outside its terms.

3. The County Court had no jurisdiction to punish the conduct as contempt in the face of the court under section 118 of the County Courts Act 1984. That provision is exhaustive for this species of County Court contempt and concerns conduct which actually disrupts proceedings. A conversation during an adjournment did not interrupt the proceedings within section 118(1)(b). A wider allegation of interference with the administration of justice required the permission of a High Court judge under the applicable committal procedure.

4. Although a County Court judge may initiate committal for breach of an order, that exceptional power should be used only where no other course will protect the administration of justice. The alleged contempt was not investigated fairly. The director received no proper opportunity to take advice, give evidence, explain himself or apologise. Remanding him in custody before deciding whether imprisonment was justified was disproportionate and, per Leggatt LJ, a misuse of judicial power.

5. A judge faced with possible compromise of a witness’s evidence should investigate sufficiently, minimise interruption and ordinarily complete the trial. Questions of contempt or further action should generally await judgment. The conversation concerned a third party’s opinion about a hypothetical consequence of losing the possession claim. It did not justify treating all the director’s evidence, including evidence relevant to the counterclaim, as unreliable.

6. Strike-out during trial under rule 3.4(2)(b) of the Civil Procedure Rules 1998 is exceptional. It may be justified where misconduct makes a fair trial practically impossible or creates a substantial risk of injustice. This case was far removed from authorities involving persistent forgery and false evidence. Any evidential damage was manageable. A provisional view that the possession claim lacked sufficient evidence was not a lawful basis for striking it out; the proper course was to hear the evidence and decide the merits.

• Court of Appeal (Civil Division): The appeals were allowed in [2019] EWCA Civ 1. The committal and strike-out orders were set aside, and the proceedings were transferred for a new trial before a different judge.
• Oxford County Court: HH Judge Melissa Clarke found the third party in contempt, remanded him in custody overnight, imposed a suspended sentence, struck out the possession claim and defence to counterclaim, and entered judgment for the defendant on the counterclaim.