Improper Interference With A Witness?

The claimant ship owner in Versloot Dredging BV v HDI Gerling Industrie Versicherung AG and others [2013] EWHC 581 sought an injunction against the defendant insurers and their solicitors to prevent them from allegedly seeking to impede the claimant's access to the defendants' surveyor for the purpose of obtaining evidence and information from him.

On the defendants' instructions the surveyor surveyed the vessel following a casualty, interviewed the crew, reviewed repair options, attended meetings at the claimant's office and liaised with average adjusters. He prepared two preliminary reports and a further detailed report, all of which were shared with the claimant, who had not appointed its own surveyor. Throughout this process the claimant had unfettered access to the surveyor.

The surveyor then attended meetings with the defendants' solicitors and experts during which he discussed the factual background to the case and provided technical input and his opinion on various matters. Consequently, he was privy to "privileged trains of enquiry and thought processes" which attract litigation privilege.

Following disclosure and exchange of witness statements, the claimant's solicitors sought to arrange a meeting with the surveyor to gain his factual evidence and technical judgment on a range of matters. The surveyor asked the defendants' solicitors whether he could attend. The defendants' solicitors responded noting that whilst there was nothing to stop the claimant's solicitors from approaching him, the surveyor should appreciate that he had been appointed by the defendants to provide not only factual but also technical evidence and it would be inappropriate for the claimant's solicitors to question him about the latter. They provided the surveyor with a draft message to send to the claimant's solicitors explaining that they had asked him to decline the interview request.

The defendants were concerned that the surveyor (who was Dutch and not legally qualified) may not appreciate the niceties of English law of privilege and considered that the appropriate time and place for the claimant to question him was during cross-examination at trial, at which time the judge would protect him from being compelled to breach privilege or confidence.

The defendants' solicitors offered various options to the claimant's solicitors. They invited them to address any questions of fact they wished to put to the surveyor to the defendants' solicitors. Alternatively...