Cox v Jones

This judgment contains the reasoning behind my decision, which I delivered without reasons, on the morning of 4^th May 2004, which was day 9 of this trial. My decision related to the extent to which one of the witness statements in these proceedings, and the statements of case, should be open to inspection. The matter arose in the following way.

In the normal way, witness statements were served in this case. In the case of several of the Claimant’s witnesses, statements were served under cover of Civil Evidence Act notices on the footing that for one reason or another those particular witnesses could not attend. At the time of the opening of this case it became apparent that, in the case of several other witness statements not served under cover of such a notice, the Defendant did not seek to cross examine those witnesses. In those circumstances those statements were admitted as part of the Claimants case, again under the Civil Evidence Act 1995.

This case concerns the ownership of certain properties. The questions arise as between the Claimant and the Defendant as a result of the break-up of their relationship. They had at some point of time been engaged. Their relationship effectively came to an end in mid 2001. The nature of that relationship from time to time is one of the matters at the heart of this case, because the transactions which are said to have taken place between the two, have to be measured against what that relationship is found to be. In that context the Defendant had actually pleaded that the Claimant had had certain relationships with other men, both before and during the period of his own relationship with her. His Defence accused her of lies and deceit in respect of those relationships. The Defence also contained an allegation that the Defendant had in effect set up her claims during the relationship by bringing about, or bringing into existence, certain of the evidential material which she now relies in support of her claim. This particular allegation has become known as the "gold-digger" allegation, in the short-hand of this case. In dealing with the allegations of relationships, Mr Jones’ witness statement identifies a number of men.

When Miss Cox was cross-examined, none of the matters which I have just referred to were put to Miss Cox. It was not put to her that she had actually had relationships with any of the men in question at any particular time, or that she had been guilty of lies and deceit in respect of any relationships. Furthermore, no questions were put to her on the footing that she was guilty of the matters alleged in the gold-digger allegation. Rather, it was put to her that she became motivated to make the claim that she makes in this action upon hearing that Mr Jones was re-marrying. That was a fundamental shift of position. At the end of the cross-examination I pointed out to Mr Ashe Q.C., who appears for Mr Jones that the gold-digger allegation had not been put, and he accepted that and said that he did not maintain that allegation.

A number of other witnesses then gave evidence for Miss Cox. Again, none of the allegations of actual relationships were put to any of the witnesses (in truth it would not have been appropriate to put it to most of them), and of course the gold-digger allegation was not put either. Her case was closed towards the end of day 4 of this hearing. The first thing that happened in the advancement of Mr Jones’ case was, not surprisingly, that he was called as a witness. He confirmed his witness statement with some minor and, for these purposes, irrelevant amendments. Mr Roberts then embarked on cross-examining Mr Jones, and he started by pointing out those parts of Mr Jones’ witness statement which had not been put to Miss Cox – they were extensive. At this point there was a debate between myself and counsel as to where matters stood in relation to matters which had not been put and advanced, and I required the Defendant, through his legal team, to indicate those parts of the Defence and witness statement which would not be relied upon in the case. Over night they provided pages of the Defence and witness statement which were underlined to indicate those parts which I have just referred to. They included the "gold-digger" allegation, and one specific reference to an allegation of certain behaviour with an individual contained in the Defence (not identifying the individual in question but identifying him as a member of the Bar). Certain parts of the witness statement were similarly underlined, as were parts of a Response to a Request for Further Information. Basically those documents identified some, but not all, of the allegations of the behaviour and relationships between Miss Cox and other people. At the opening of the case at the beginning of the next day Mr Roberts, who appears for Miss Cox, indicated that he needed to know whether or not it was appropriate for him to cross-examine in relation to the matters that would not be relied on. This slightly oblique form of request was ultimately identified as being implicitly an allegation to strike out offending material, extending not merely to the underlined passages provided by Mr Jones’ team but to further passages which Mr Roberts said were equally objectionable as not having been put to his client; and that it was how it was treated. Mr Roberts said that he needed to known where he stood, and that if important allegations were not being pursued they should be struck out of the relevant document. At the time it seemed to be important to identify the issues which were still live and those which were not still live so that the scope of the remainder of the case and in particular cross-examination, could be determined. For that reason I struck out certain parts of the Defence – not only those parts underlined by the Defendant’s counsel but also certain other parts which it seemed to me could no longer be maintained in the light of the way in which Mr Jones’ case was not put. As well as providing me with the underlined passages, counsel for Mr Jones provided a note which indicated that the "sexual allegations" made against Miss Cox were not being pursued as such because they were not relied on as facts relevant to the case. What was relevant was Mr Jones’ jealously of Miss Cox and his perception of her behaviour in this respect. With that clarification I struck out parts of the Defence. I did not go on to order the striking out of any corresponding parts of the Further Information simply on a time footing – once the main allegations had been struck out, any dependent Further Information would become irrelevant and it did not seem to me to be worth the time involved in going through what was a very extensive document with a pencil of an appropriate colour. The parties clearly knew where they stood. Mr Roberts, very sensibly, did not pursue that point further. Mr Roberts also suggested that part of the witness statement of Mr Jones should be struck out. I declined to make that order for at least two reasons. First, it did not seem to me to be obvious that a witness statement, or parts of it, could be struck out when it had actually been confirmed by the witness in the witness box and had become part of his evidence in chief. Second, the exercise of working out, almost on a sentence by sentence basis in relation to a long witness statement, which part should stay and which part should go seemed disproportionate in terms of time. It was left on the footing that the survival or otherwise of parts of the witness statement would be dealt with in final speeches. However, it is my strong recollection (without having a transcript of what I said at the time) that the question of striking out parts of the witness statement was left open for further argument if necessary. For better or worse, my decision enabled the case to proceed without too much delay.

The case then suddenly seemed to attract the attention of the media. From day 6 onwards, the proceedings were, as I understand it, reported in a number of daily newspapers. Over lunchtime on Day 8 (Friday 30^th April) I received a witness statement from a reporter from The Times who had been covering the trial, seeking clarification of what might and might not be reported in this case, and seeking inspection of witness statements. At 2.00pm I ruled that the witness statements of all those who had hitherto given evidence, with the exception of Mr Jones, should be open to inspection; my ruling in effect covered the Civil Evidence Act notices to which I have referred. So far as the latter notices are concerned, proper and accurate reporting of this case would require that those documents be made available as well. I reserved the position in relation to Mr Jones’ statement because I needed to give proper consideration to the extent to which allegations involving Miss Cox and individuals, which allegations had been withdrawn save insofar as they were part of the jealousy point, should nevertheless be available for inspection. I indicated that it would certainly not be the case that the whole of Mr Jones’ witness statement would be withheld but consideration would have to be given to whether any redaction was appropriate (something which the witness statement from The Times reporter actually anticipated).

The case resumed at 10.00 am on Tuesday 4^th May (the intervening Monday being a bank holiday). On that occasion Mr Wolanski appeared, instructed by The Times. He made what he described as two applications, while pointing out that one of them was in effect an assertion of a right. First he sought disclosure of witness statements, so far as not already covered by my order, on the footing that in effect his client did not have to apply for inspection because the rules provide for inspection anyway, and that it was for anyone resisting inspection to apply accordingly. The second was an application for inspection of the statements of case.

I deal first with issue of the witness statements. In effect, the issue only arises in relation to Mr Jones’ witness statement, which was the point left over from last Friday’s debate. The Civil Procedure Rules deal with this point explicitly. CPR 32.13 provides as follows:

It will be apparent from that citation that Mr Wolanski is quite right to say that one starts with the proposition that a person (here his client, The Times) is entitled to inspection of a witness statement which has stood as evidence in chief. Technically because of the way in which matters unfolded in this case, Mr Jones’ witness statement fulfilled that requirement. It was not until after he had confirmed it and been offered up for cross-examination that questions arose as to the extent to which the evidence in it could be relied on. That throws the burden of resisting inspection on any person who says it should be disallowed. Mr Roberts did not resist the disclosure of the whole witness statement but he did resist the disclosure of parts of it which contained the allegations against his client which had been abandoned. I had also invited him to consider the position of third parties against whom allegations of relationships with the Claimant had been made and in respect of at least some of whom it might be said that it would be unfair for the allegations to appear in the witness statement but not be maintained in the course of these proceedings. I had in mind at least one married man and one doctor. Mr Roberts submitted that it would be against the interests of justice for inspection to take place, at least at this stage, because it would not be possible for the person inspecting to ascertain which allegations have been abandoned as allegations of fact and replaced by an allegation of jealously based on perceived, but not actual, facts. To allow the release of the whole witness statement would give a false impression of the way in which the case has been presented. He encouraged me to exclude extensive passages of the witness statement, containing those allegations, on the grounds that they were, or had become, scurrilous accusations against his client and third parties. Mr Ashe was, understandably, neutral on this point, although he did give me helpful assistance on one or two points where I invited him to do so.

I have approached this matter by first considering what the position would have been had evidence in chief been given in the old-fashioned oral way. I do so because it seems to me that the basis on which witness statements standing as evidence in chief are automatically open to inspection must be the premise that, with some exceptions, judicial proceedings are conducted in public, and the public is entitled to know what evidence is presented by a witness whether that evidence is given orally or whether it is, in the interests of efficiency and time-saving, given by adoption of a witness statement. If that had happened then, as soon as Mr Jones embarked on giving evidence of material which was not put to Miss Cox, it would have been open to Mr Roberts to object to the giving of that evidence in chief on the basis that it was important material which had not been put. I consider it highly likely, if not inevitable, that he would have done so. At that point Mr Ashe would have been forced to reveal the reformulation of his case, which is not that the relevant relationships occurred, or, in the case of some, that Miss Cox admitted that they occurred, but that his client had perceived that they occurred and that he was jealous as a result. He would not have been allowed to advance a case that the relationships actually took place; nor would he, on the state of the pleadings and the evidence, have been allowed to advance a case that the jealous perceptions were founded in fact, because that was not put to Miss Cox either. He would thus have been forced to identify the position that he is now in effect in, which is limiting his case to an actual but unreasonable jealousy. In those circumstances he might have been permitted to identify the individuals with whom the (non-existent) relationships took place, but I very much doubt it. Unless challenged to do so by Mr Roberts (which is unlikely in the extreme) he is more likely to have been confined to identifying the relationships in some other way which did not wilfully and without justification bring the reputations of others into question, albeit in the context of a case which accepted that the relationships did not take place. However, it would still have been the case that his client would have been giving evidence of these misconceived relationships, and in substance most if not all of the evidence on the point would have come out, albeit in a slightly different form.

There was, however, never any suggestion that it would be appropriate for Mr Jones to give his evidence as oral evidence in chief, and it was always anticipated that he would give it by confirming his witness statement, or at least a modified version of it. I therefore ask myself next what would have happened if the objections to his witness statement had been taken before he formally confirmed it. It seems to me that in that event the proper course would have been to bring about a situation in which his position was made clear and his evidence was given in an appropriately modified form. Those modifications would have required him to have made clear that he perceived that the relationship existed, but would have prevented him from saying that they actually did, save perhaps in his own mind. In order to bring that situation into line with the proper evidential case, and with what the position would have been had oral evidence in chief been given, there would have had to have been some modifications or deemed modifications of the witness statement and the confirmation given by Mr Jones. In addition, I consider it likely that I would have considered it inappropriate for the individuals to be actually identified by their full names.

However, we are not in that position either. As a matter of technicality Mr Jones has already given his evidence in chief by confirming his witness statement without any modification (or any modification that is germane to the issue in hand). Does that mean that the cat is now out of the bag and cannot be stuffed back in it? Is it open to me to bring about the same situation as would have existed had the point about the proper scope of cross-examination and Mr Jones’ evidence been taken a few litigation minutes before it actually was? I accept in the circumstances which now prevail I am governed by the wording of CPR 32.13. The evidence has formally been given in the form in which it was and unless any restraint on inspection can be brought within one of the five heads of paragraph 3 of that rule then that is that. The second, third, fourth and fifth of those justifications obviously have no part to play in the debate. The first justification, namely "the interests of justice" is the only candidate. I accept, as was in effect submitted by Mr Wolanski, that the exceptions to disclosure must be narrowly construed. The over-arching consideration is the principle that justice must be done publicly. With that in mind, the apparently broad phrase ("in the interests of justice") must be approached with some care. In this context the expression must obviously include such situations as limiting the publicity given to the evidence in one case because of the risk of prejudicing the outcome of the other. The present case is a long way from that sort of situation. However, I think that the interests of justice in this case do justify and require some limited, albeit relatively small, restrictions on the right of inspection. It was, I think, to some extent a matter of chance that matters evolved as they did. Obviously it was Mr Roberts’ judgment (for which he is not to be criticised) to raise the matter in the manner and at the time that he did, but that is all part of the hurly-burly of litigation. It might be said that his client might have to pay the price of his having made that judgment if it means that technically some evidence has been made public which she would rather had not been made public. However, I do not think that the same consideration applies to third parties. If the point had been taken or made just a little earlier, we might well have been in a position in which their names were not capable of being bandied around as being associated with the sort of allegations which were made at some time but which have since been withdrawn. I think that the interests of justice entitle me, in the exercise of the discretion which I consider I have under CPR 32.13, to look to their interests.

In the circumstances what I propose to order in relation to Mr Jones’ witness statement is that it be inspected in its full form save that the names of the individuals mentioned in connection with the allegations of the relationships, with one exception, be deleted and be replaced by initials (not the initials of the people themselves). That, I think, is the best way in which the proper interests of the parties, those third parties and the general public (with its interest in the publicity of litigation) can be reconciled. So far as Miss Cox is concerned, it is inappropriate to remove all references to those relationships, and other conduct to which she objects to reference being made, because the fact that Mr Jones made the allegations, and perceived the relationships to have existed, in a relevant part of this case. It would therefore be inappropriate to excise them completely. If that means that someone reading the witness statement might not appreciate the different form in which the case takes in relation to those allegations (of which I certainly accept there is a risk) then that is regrettable, but it is really the effect of the manner in which and the point of time at which the point emerged. Although I think I can say that the question of whether the witness statement ought to have parts struck out of it was in effect reserved when Mr Roberts made his first application, I think that probably by then, and certainly by now, it was too late for effective radical surgery and transplantation. I must have some regard to the practicalities of litigation, particularly in this case where the costs involved have already got out of all proportion to the amounts at stake. Third parties are not in quite the same position. I think that in the circumstances their interests, which form part of "the interests of justice", have to be respected and safeguarded where possible. I think it fair to them in the circumstances to try to bring about the same situation as would have prevailed had the matter developed in accordance with strict theory (i.e. oral evidence in chief). They cannot be left out of the picture entirely, because their existence is part of the allegation as to the (misconceived) relationships, but they do not have to be identified. As I have said, their interests can and should be safeguarded by reducing their names to initials. It is particularly appropriate in relation to the doctor whom I have already referred. The exception that I have referred to is one individual who has been mentioned so frequently in cross-examination that his excission from the witness statement would be entirely artificial. I shall therefore so order. I would add that I do so knowing that in fact other references have been made to relationships in other parts of this evidence. I do not overlook that fact, but it does not effect my decision. When I gave my decision on this matter I asked Mr Roberts if someone in his team would prepare an appropriately altered witness statement for my consideration; I shall consider its form when it is to hand.

Next I turn to Mr Wolanski’s application for inspection of the statements of case. When The Times reporter made his application to me in relation to the witness statements, he said that he was asking for inspection in the interests of accurate reporting. Having seen some of the newspaper reports in this case, I consider that that is a particularly strong factor in this case. I think that Mr Wolanski puts his application on much the same footing. The relevant provision of the CPR is CPR 5.4. That rule provides, so far as material, as follows:

I propose to deal with this matter shortly. There was no objection from any party to the provision of the Particulars of Claim in this case, or to the Amended Defence and Counterclaim in the form in which it exists now that certain allegations have been ordered to be struck out by me. That is so notwithstanding that the Amended Defence and Counterclaim does not really reflect the case based on jealousy rather than the case based on actual relationships. In the light of that non-objection, I am prepared to permit their inspection. I accept that, notwithstanding the discrepancies in the Amended Defence and Counterclaim, the interests of accurate reporting (and an accurate consideration of the case) are best served by producing those documents. However, the same does not apply to the Response to the Request for Further Information. Part of that document is given over to elaborating on the allegations of relationships which have now been abandoned. The striking out of parts of that document was, it will be remembered, not pursued by me because it seemed that it would be a disproportionate waste of time formally to bring it into line with the striking out of parts of the Defence. Accordingly, the exercise of striking out was not done. It would not be appropriate to release that document without that exercise being carried out. However, in the interest of costs-saving, time-saving and proportionality, I do not propose to require that to be done. In the circumstances it remains inappropriate to order the release and inspection of that document, and I do not order it. I am quite confident that a proper understanding of this case can be achieved without an inspection of that document, so there is no good and legitimate reason for permitting that inspection. I therefore do not allow inspection of that document.

In the circumstances: