Versloot Dredging BV v HDI Gerling Industrie Versicherung Ag & Ors

The claimants apply for an injunction requiring the defendant underwriters and their solicitors to withdraw their instruction and/or request and/or encouragement to Mr Gravendeel of Doldrums not to talk to and/or provide evidence and/or information to the claimants’ solicitors outside the presence of the defendants’ solicitors, and to restrain them from inducing or encouraging Mr Gravendeel not to talk to or provide information and evidence to the claimants outside the presence of the defendants’ solicitors, or in any way seeking to restrict or impede the claimants’ access to Mr Gravendeel for the purpose of interviewing him and obtaining evidence and information from him.

Mr Han Gravendeel is the surveyor from Doldrums, who is engaged by the producing brokers, on behalf of the underwriters, to determine the cause of the casualty and the extent of the loss. He attended at Gdansk (the port of refuge) and Bremerhaven, where permanent repairs were undertaken. He interviewed the crew, surveyed the vessel, reported to underwriters, reviewed repair options and attended meetings at the claimants’ offices. He carried out tests on parts of the ship and liaised with average adjusters. He produced a detailed survey report dated 1 December 2010 to underwriters. The claimants had no surveyors themselves, but they had unfettered access to Mr Gravendeel himself. Mr Gravendeel’s report of December 2010 has been disclosed to the claimants. The defendants have also served a very short statement from Mr Gravendeel dated 31 August 2012, which confirms his attendance in Gdansk and that he made two preliminary reports on 8 February and 1 March 2010. This statement was accompanied by a Civil Evidence Act notice, saying that he may not be called at trial because he was beyond the seas and was not compellable to attend. That was interpreted by the claimants as meaning that it was not intended that he should be called. It has, however, now become apparent that he will attend the trial and will be available for cross-examination.

The claimants wish to interview Mr Gravendeel on a wide range of topics because of his intimate knowledge of the vessel in his capacity as a professional surveyor, and they wish to do so otherwise than in the presence of representatives of the defendants or their solicitors. They want his factual evidence and technical judgment on a range of matters.

It is necessary to refer to the sequence of events. On 4 October 2012 the producing broker recorded as follows:

The position has moved on since then. Mr Gravendeel, who had, according to what he told Ince & Co, not thought that the proposal was that he should be interviewed without someone from Ince being present, is willing to meet Mr Cashman without anyone from Ince being present if the defendants consent. The defendants are concerned that he may not appreciate the niceties of the law of privilege, being a Dutch surveyor and not an English lawyer.

On 6 February Ince & Co wrote to Sach again offering a further alternative solution. The solution was that they would take the defendants’ instructions as to whether they were prepared to indicate to Mr Gravendeel that he might meet with Sach Solicitors to be interviewed ahead of the trial without Ince & Co being present if Sach Solicitors gave an undertaking that they would not trespass into matters that might be subject to confidentiality or privilege in any interview or other communication with Mr Gravendeel, and if they agreed to provide a full note or, better, a recording of any interview with Mr Gravendeel and any correspondence with him. The initial response to that message was that Sach would seek their client’s instructions in respect of the undertaking if the defendants paid the costs of their application, but would not in any event record the interview, or provide a note of it. Accordingly, Ince & Co have in turn offered, firstly, that the claimants should provide a list of questions of fact for Mr Gravendeel to answer to them; secondly, that they would invite Mr Gravendeel to attend at trial in order that he could be cross-examined – something which they referred to in their letter of 10 January; thirdly, that he should be questioned in their presence; and fourthly, that he should be questioned without them being present against an undertaking with a note or preferably a transcript. An undertaking has been offered by Mr Cashman today that in any interview he would not ask questions about any communications between Mr Gravendeel and underwriters or Ince & Co from the time that the litigation was contemplated upon the basis that any privileged material would form part of those communications. No method of procedure has been agreed. In particular, Sach & Co are unwilling for there to be a recording or a transcript of any interview upon the footing that that may discomfort the witness and preclude him from giving full evidence to them.

In the face of this impasse, it is necessary for me to decide that to which the claimants are entitled. The claimants submit that they are entitled to free and unimpeded access to Mr Gravendeel, that they are entitled to ask him questions without Ince & Co being there, not least because, if Ince & Co are there, they will or may learn from the questions something of the claimants’ thinking about the case which would be privileged. They say that any attempt to prevent them from enjoying such access is a contempt. They rely upon the oft-cited proposition that there is no property in a witness, and they submit that the court need not be concerned about any breach of confidence or privilege because of Mr Cashman’s undertaking.

Simply to state that there is no property in a witness does not determine the course of action that the court should take. It is necessary, amongst other things, to consider what that proposition means, and to do so in the light of other relevant considerations such as questions of confidence, privilege, the position of the witness himself, and the impact of the Civil Procedure Rules. The position is complicated because it may be that Mr Gravendeel is in possession of information which, although not correctly characterised as the subject of litigation privilege, is nevertheless the subject of obligations of confidentiality towards the defendants. Further, in view of the fact that, after completing his investigation, he has attended meetings with the defendants, the defendants’ experts and Ince & Co, where the case and the defendants’ defence to it has been discussed, and has contributed technical input and opinion in connection with the interpretation of that evidence, he will have been privy to what Mr O’Keefe describes in his witness statement as “ privileged trains of enquiry and thought processes ” which attract litigation privilege.

The fact that there is no property in a witness undoubtedly means that party A cannot prevent party B from calling as a witness at trial (under subpoena if necessary) someone from whom A obtained a statement or whom he intended to call himself. A has no right to have the witness to himself, or for no one else to have him. Further, a witness, once called, may be required to give evidence, if it is relevant, which would otherwise be confidential to A.

We are, however, concerned here with the position before trial. In respect of that, certain matters seem to me to be established. First, the decision whether or not to cooperate with a party to whom no relevant contractual or fiduciary obligations are owed is that of the witness in question. Absent a subpoena or other compulsory process, a witness cannot be compelled to provide assistance and information. He may, all other things being equal, make his own choice. Second, the “no property in a witness” rule means that, in cases where no question of breach of confidence arises, a solicitor commits no impropriety simply because he seeks information and takes a statement from a witness, even though that witness has given a statement to the other side. He must not, of course, tamper with evidence or threaten or intimidate the witness or suborn him, but that is a different matter. Third, the fact that a witness could at trial be compelled to reveal confidential information does not mean that he is entitled to do so before trial. He is not. Further, the confidentiality obligation does not cease following disclosure in accordance with the CPR – see Porton Capital Technology Funds v 3M UK Holdings Limited [2010] EWHC 114. Fourth, neither before nor at trial is a witness entitled to reveal information which is legally privileged unless there has been a waiver, or unless one of the relevant exceptions applies. Fifth, it cannot, as it seems to me, be a contempt of court for a party to whom obligations of confidence are owed, or who is the beneficiary of legal privilege, to tell a witness that he may not reveal information which is truly confidential or privileged.

The claimants rely upon a series of cases in which the court has set out the “no property in a witness” rule in ringing terms and with more general observations as to its consequences. In R v Kellett [1976] 1 QB 372 the defendant attempted to persuade two witnesses to withdraw the statements they had provided to an enquiry agent in relation to his wife’s divorce proceedings by threatening to bring a slander action in respect of statements they had made to a friend of his which had been tape-recorded. The defendant was convicted of attempting to pervert the course of justice. The Court of Appeal held that a party attempting to persuade a witness to alter or withhold his evidence will be guilty of attempting to pervert the course of justice, even if his promises or threats were made in the exercise of a legal right. The facts of that case are remote from the present case, where no attempt to pervert the course of justice of the type that arose in R v Kellett is suggested, nor have the defendants sought to persuade Mr Gravendeel not to give evidence at trial.

Giving the judgment of the court, Stephenson LJ said at 392G:

In Connolly v Dale [1996] QB 120, the applicant’s enquiry agent was prevented by officers responsible to Detective Superintendent Dale from identifying and interviewing potential witnesses for trial who might support his alibi. When the agent had sought to show a photograph of the applicant to people at a hostel, he was prevented from doing so by police officers because of possible prejudice to an identification parade, and at the instigation of the police he was refused access to the hostel or its residents. It was held that the police’s action, however well meaning, was unlawful. Balcombe LJ explained matters thus at 125E:

In Harmony Shipping Company SA v Saudi Europe Line Limited (‘The Good Helmsman’ ) [1979] 1 WLR 1380, the plaintiff sought to prevent the defendants from calling a handwriting expert who had previously advised the plaintiff. The Court of Appeal held that the plaintiff could not prevent the defendant from adducing the evidence of the expert, who could properly be made the subject of a subpoena to appear at trial. Lord Denning MR said this:

The facts of that case also were significantly different from the present case. The court was primarily concerned with whether the principle that there was no property in a witness, the rationale of which was said to be that the court has a right to every man’s evidence and that it was the primary duty of the court to ascertain facts by the best evidence available, applies to expert opinion evidence, so that the witness could be compelled by the defendants to come to court. In the present case, Mr Gravendeel has, in effect, been tendered for cross-examination, so he will be available at court.

Further, in Harmony Shipping the expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial. The court did not have to address the situation before the witness had spoken to the solicitor for the other side, or the problems of privilege and confidence and the position of the solicitors for the expert’s principals and of the expert himself, at that earlier stage. The court recognised that many communications between the expert and the solicitor for the plaintiffs would be privileged and could not be given in evidence, and that the judge at trial would protect the witness from being compelled to breach privilege or confidence.

The question remains, therefore, whether the general observations in Connolly v Dale about interference with proper and reasonable attempts by a party’s legal advisors to identify and thereafter interview potential witnesses and to the prohibition against the prevention of full and unimpeded access in the same case, and the observation from Lord Denning in Harmony Shipping that “ In no way can one side prohibit the other side from seeing a witness of fact and from getting the facts from him ”, mean that that which has been done in the present case is unlawful.

Mr Jacobs submitted that these cases were concerned with attempts to prevent a party from calling at trial as its witness a witness of fact or opinion. They are, he submitted, simply inapplicable to present circumstances, where Mr Gravendeel is coming to give evidence, and not as the claimants’ witness, and can be cross-examined. The court is thus not going to be deprived of the right to his evidence, and the mischief which these cases were designed to address will simply not result. There is no question of a threat towards Mr Gravendeel to prevent him from giving evidence, nor any attempt to persuade him to alter or withhold his evidence from the court.

I accept, as I have already said, that the facts of these cases are different, but they seem to me to embody a wider principle. That principle is that it may be a contempt to interfere with attempts to interview a potential witness, or to prohibit the other side from getting the facts from him. Whether or not there is a contempt depends on whether the interference is improper. If it is, it does not cease to be so because the witness in question is scheduled to appear at the trial at the behest of the opposing party and may be subject to cross-examination thereat.

It is therefore, in my judgment, no answer in the present case to the claimants’ application to say that Mr Gravendeel’s evidence will be available at trial. Improper interference with access to a witness may mean that, although the witness is called at trial, the entirety of the evidence that he could give is not in fact elicited, because it has not been elicited by the party who called him, and because the opposing party was not aware, or not fully aware, that that witness had such evidence to give, with the result that the best evidence is not available to the court. That seems to me good reason for not confining the dicta in these cases to circumstances in which the witness in question is not to give evidence at trial.

Whether, however, there has been improper interference with a witness or the evidence-gathering process is fact sensitive. Because it is fact sensitive, it is not possible to be prescriptive as to what circumstances will, and what circumstances will not, constitute improper interference. Some matters can, however, be specified. Threats or promises made in order to persuade a witness to decline to be interviewed would be improper. But a solicitor for party A is entitled to raise legitimate concerns about questions of confidence and privilege, and indeed to tell a witness for party A, who may be about to be interviewed by the solicitor for party B, that he is not at liberty to break any confidence that he owes to party A or to reveal privileged information in respect of which party A alone can give a waiver.

What a solicitor is not entitled to do, or indeed a party, is to order or instruct a witness or a potential witness not to attend an interview with the opposing solicitor or to tell him that he has no real choice in the matter, or to put pressure on him not to comply. Nor must he make it appear that the witness can only be interviewed if the solicitor or his principal consents. Mr Jacobs accepted in the course of argument that any form of, as he put it, “strong persuasion” should be avoided, and in my judgment rightly so, for it is liable to be indistinguishable from improper pressure. Indeed, in determining whether or not there has been improper interference with a witness, the court will look at the reality of what has occurred.

I have come to the conclusion that it is not appropriate or necessary to grant injunctive relief against the defendants on the grounds that they are acting, or are likely to continue acting, in an unlawful way. The high-water mark of the case for the claimants is contained in Mr Billowes’ email of 24 October to Mr Gravendeel, where he referred to “ your instructions not to discuss the matter with him [Mr Cashman] ”. Those words may have been somewhat ill-chosen. The context was the distinction that was made between technical advice and purely factual matters and to the view taken by Ince & Co that it was wholly inappropriate for there to be discussion in relation to the technical advice which had been given, the nature of that advice being that it, or at least some of it, had occurred in a privileged context.

In any event, if that be too benign a view, I am not satisfied that there is a prospect of unlawful behaviour in the future on the part of the defendants or their solicitors which justifies injunctive relief. Matters have moved on since October 2012, and there have been a series of communications and proposals, designed to enable the parties to avoid or get out of the present impasse, and in which it has become clear that it is accepted that Mr Gravendeel may not properly be asked questions about confidential or privileged matters and in which various proposals have been made as to how matters should be dealt with so far as evidence which does not fall within that category is concerned.

It seems to me, however, that it is necessary to spell out the position, as I see it, for the assistance, amongst others, of Mr Gravendeel. That position is as follows.

Mr Gravendeel is (subject to the qualification that I shall mention) free to give evidence to, and to be interviewed by, Sachs Solicitors, and Mr Cashman in particular. If he is so interviewed, he does nothing wrong in allowing that to happen. The qualification is that he is not at liberty to reveal confidential or privileged information in relation to which he owes duties to the defendants. Such information is likely to be information that has been communicated to him, or by him, in communications between him and the defendant insurers and their experts and their solicitors. However, if he has factual evidence to give of what he saw or witnessed, he is not precluded from informing Mr Cashman of that fact simply because he has also told Ince & Co or the defendants of the same fact. Nor, if he has a technical opinion, is he precluded form expressing a technical opinion, because he may also have expressed it to the defendants or Ince & Co. What he is precluded from revealing are the confidential exchanges between the defendants and their advisors and himself.

Whether or not Mr Gravendeel is interviewed is something for him to decide. In that respect, he has a free choice. He should not regard himself as being under any instruction not to be interviewed, nor does he require the consent of the defendants or Ince & Co in order that he may be interviewed. If he attends such an interview, it is common ground that he can take notes of the interview if he wishes, and can reveal them to Ince & Co and the defendants.

There is a dispute as to whether, if he attends such an interview, he should have his evidence recorded or the subject of a transcript. As to that, whether or not he wishes there to be a recording or a transcript available to all parties is a matter, in the first instance, for him to decide. If he wants either of those, he will no doubt seek to agree that with Sach/Mr Cashman. If that is agreed, all well and good. If that is not acceptable, then it will be for him to decide whether or not he is prepared to be interviewed in circumstances where there is no recording and no transcript. It would not be lawful for the defendants or their solicitors to put pressure on him as to what course he should take. Nor should he feel himself to be under any such pressure. Nor would it be lawful to penalise him in any way for taking whatever course it is that he decides to take. I do not intend by that to indicate that it is not open to the defendants or their solicitors to express a point of view or a preference, but it must not amount to pressure, it must not indicate that their consent is required, and it must be apparent that the choice is, as I have said, a free choice, and that the choice is his. He will, I am sure, understand that the effect of being interviewed may result in his being called as a witness by the claimants, which they are perfectly entitled to do, or that he may be asked in cross-examination on behalf of the claimants, if he is called by the defendants, questions which are, in whole or in part, derived from what he has said when interviewed by Mr Cashman. In the nature of things, it is also possible that if he declines to be interviewed by Mr Cashman, he may be asked why that is so.

In the light of that statement of what I regard as the true position, it seems to me that Mr Gravendeel will know where he stands, and that the prospect that either the defendant underwriters or their solicitors will act in a way which constitutes an improper interference with the ability of the claimants to seek to interview Mr Gravendeel is remote.

In those circumstances, it is not essential to deal with a submission of Mr Jacobs as to the impact of the CPR, but in view of the fact that he developed it, I propose to say something about it.

He submitted that, once a witness statement has been served on a party in litigation, any rights that the opposing party may have in relation to that witness are governed by the CPR. Under CPR 32.5, if a party serves a witness statement and seeks to rely at trial on the evidence of the witness, the witness must either be called or the statement put in as hearsay evidence. If he is called, he can be cross-examined generally, including cross-examination on his witness statement, even if it was not referred to in his examination-in-chief. If a witness statement is tendered under the Civil Evidence Act, but the witness is not called, the opposing party may apply to call and cross-examine the witness.

In those circumstances, Mr Jacobs submits, there is a proper and regulated procedure whereby a party can cross-examine a witness at trial under the “protection” of the judge and the party on whose behalf he is called, which makes it inappropriate to allow what Mr Jacobs characterised as “advance cross-examination” by permitting Mr Gravendeel to be interviewed by the claimants’ solicitors. He set out a series of practical reasons why he submitted that, once a witness statement has been served, it is the CPR, and nothing else, that should govern.

Whilst I can see the attractiveness of this approach, I do not accept it. The CPR is a procedural code which lays down rules for the production of witness statements for use at trial. It cannot, in my judgment, be treated as the sole source of rights and obligations in respect of witnesses and the taking of their statements from the moment that a statement of the witness in question has been served. What those rights and obligations are or are not must be governed by the law relating to confidence, privilege and contempt, which I have endeavoured to apply.