Can A Witness Be Guilty Of Contempt By Communicating With A Third Party When They Are Part-Way Through Giving Evidence?

If during trial a witness is part-way through giving evidence and needs to come back after lunch or the next day to carry on, the judge will usually warn them not to talk to anyone about their evidence during the intervening period. This can be difficult for a witness, but the main reason is to prevent a third party from interfering with the witness's evidence and to prevent the witness from consulting with a third party about their answers.

What are the consequences if the witness does not heed this warning? In a recent case, Hughes Jarvis Ltd v. David Searle and Neil Jarvis (Third Party) [2019] EWCA Civ, the witness emailed his lawyers and spoke to a third party while he was part-way through giving evidence. When the judge found out, she directed that he spend the night in prison. The following day she sentenced him to 14 days' imprisonment suspended for three months. Was this sanction correct and what, in any event, is the legal basis for making such an order?

Background

Mr Jarvis was part-way through giving evidence at trial. Before adjourning until the next day, Her Honour Judge Clarke said to him:

"I have to give you the same warning, which I gave you at lunch time, but it is an important one, not to discuss the evidence you have given or any evidence you may give, with anybody."

Despite the judge's warning, overnight Mr Jarvis sent his counsel and solicitors a number of emails and spoke to a third party, Mr O'Neill, about what would happen if his claim failed. The next day, his counsel told the judge that Mr Jarvis had emailed her, but that she had not looked at the emails. However, during re-examination Mr Jarvis admitted that he had spoken to a third party. The judge found that the communications amounted to contempt "because they breached the explicit order that I made and I find them to be a wilful disobedience."

She directed that a hearing to determine sentence should take place the following morning and that it would not be necessary for it to be determined by a different judge as she explained that she "had no personal involvement or interest in it".

The judge explained her reasoning was not about preventing further harm; it was about marking the seriousness of what had happened. She remanded Mr Jarvis in custody overnight until the hearing. At the hearing the next day, she sentenced him to 14 days' imprisonment suspended for three months. Mr Jarvis appealed to the Court of Appeal.

Impact of the witness's actions

Lord Justice...