Whose fair trial prevails?
17 July 2016
Da Costa and another v. Sargaco  EWCA Civ 764 14 July 2016 read judgment
Two people say they owned motorbikes which they kept outside their house – until, it is said, the bikes were mown down by the defendant’s car, a collision which their witness claimed to have seen. The car’s insurers said that the claim was fraudulent and it was all a conspiracy. The judge agreed it was a fraud, whereas the Court of Appeal disagreed – but still disallowed the claim because, the CA said, the owners had not proved their case.
But the point of general interest arose because the judge decided that each claimant should give evidence in the absence of the other. And the CA said this was wrong. As I shall explain, I disagree. But let’s see where the Article 6 ECHR battle lines lie so you can come to your own view.
Insurers had made their position quite clear before the trial. This was a stitch-up job between the claimants and the defendant, who knew each other. Neither bike was registered in the name of the claimant suing. Despite the bikes being allegedly a write-off, they were sold on after the accident. The claimants used a number of addresses and it was not accepted that they both lived (as they say they did) in the house outside which they say they kept their bikes.
Early in the trial the judge accepted the insurers’ submission that each claimant should be excluded from hearing the other’s evidence. This enabled the barrister for the insurers to set up and make the most of differences in the accounts by each claimant. One said he shared a room with the other; the other said he had a different room in the same house. They also gave different accounts of details got from their witness and what the driver allegedly said.
The submission on appeal was that this decision to prohibit each claimant from being present during the evidence of the other was in breach of the obligation to afford all litigants a fair trial. The CA considered both domestic and Strasbourg authorities. Many of them were far removed from the present facts – i.e. Al Rawi, where the Supreme Court said that it could not order a closed material procedure in a civil case without the sanction of Parliament, and the CA recognised in the present case that this was rather different. But statements by the courts in Al Rawi had stressed the importance of parties being present throughout their case, seeing and hearing all the evidence given in the case.
The CA declared in  that there was no absolute requirement for a party to be present personally throughout a case, and gave some practical examples in  as to when the opposite might arise – an unruly litigant or a party having to leave early being the simplest.
But, that said, the CA thought that wrongly the judge did not start from the position that prima facie claimants were entitled to be there throughout, and
had she done so, it is difficult to see how she could have justified making an order excluding them against their will 
The CA was critical of the reasoning on this issue being “sparse” and they thought that it was difficult to contemplate that there was
any sufficient reason for taking this course in a case such as the present one.
They speculated that the order may have been made
to improve the prospects of effective cross-examination…or to avoid there being any suggestion that one claimant’s evidence had been tailored to what he had heard the other claimant say in the witness box
The effect, said the CA, was likely to leave the excluded claimant with a sense of injustice.
That all said, the CA did not find the proceedings unfair, taken as a whole. Exclusion of one claimant had not in practice caused prejudice to the way in which the advocate representing both of the claimants conducted their case.
The upshot was that the CA agreed that the claim failed, even though they did not agree that it was fraudulent or, indeed, that the trial has been unfairly conducted by the judge.
The judge’s conclusion on this point seems to have been expressed shortly, but I should have thought it was perfectly obvious why she ordered the exclusion of the other claimant. Indeed, I cannot see how the insurers’ own Article 6 right to a fair trial of its allegation of collusive fraud could be satisfied without the claimants giving their evidence in the absence of the other.
If they were honest, nothing would be lost. On matters of significance, they should say the same thing. On minutiae, they might differ, but the judge would not attach importance to this.
But if they were dishonest or unreliable, they might well differ, and it is precisely those differences which may help a judge to conclude that their evidence was to be rejected.
Anybody who has been involved in a criminal trial knows that later prosecution witnesses do not hear what the earlier ones have said, to avoid precisely this problem. And this cross-examination process can help distinguish the honest from the dishonest police officer or complainant/friend. And anyone learning advocacy knows that in these circumstances you aim to ask the questions which the witnesses are not expecting, to explore their veracity.
I appreciate that one cannot read over directly from the criminal process (where witnesses are not usually parties) to the civil one, but the salutary experience of hearing two witnesses who claim to have witnessed the same event talking about it in very different terms should justify an order in the terms the judge made.
In my view, the strong way the CA expressed its conclusion is unfortunate. I readily understand that such an order should recognise the starting-point of entirely open justice, but in a case involving alleged collusive fraud, it is entirely justifiable that a court might take a different view. The excluded claimant may need talking through what happened in his absence, and indeed an open-minded judgment explaining why the judge was proposing to take this course should be given, but this process seems entirely preferably to claimant 2 parroting out what claimant 1 has just said, thus depriving the insurers of their entitlement to a proper exploration of the evidence.
So let’s test this. In the context of this case, would claimant 2 have really said that he lived in a different room in the house when he had just heard claimant 1 said that they shared the same room?
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