An often quoted rule in litigation proceedings is “there is no property in a witness”. Put simply, just because one party to proceedings has taken a statement from a witness does not prevent the other party from also seeking to do so. In Versloot Dredging v HDI Gerling, the Commercial Court had to consider how this rule applied to a witness who had been engaged in a technical capacity by the defendant in relation to the claim.
Mr Gravendeel was engaged by the defendant to investigate the cause of casualties on a shipping vessel and the extent of loss. He inspected the vessel and reported back to the defendant’s underwriters. He prepared two reports (which were disclosed) and a short witness statement. The claimant wished to interview Mr Gravendeel without representatives of the defendant being present.
It appears that Mr Gravendeel was initially willing to meet with the claimant but sought confirmation from the defendant’s solicitors that he was able to do so. The defendant indicated that he should not do so, on the grounds that he had given technical input in relation to the claim. The defendant subsequently suggested to the claimant that they could put questions to Mr Gravendeel through the defendant’s solicitors or meet with Mr Gravendeel with the defendant’s solicitors present. The claimant wanted to meet with Mr Gravendeel without any representative of the defendant being present and sought an order from the court that the defendant was in contempt of court in advising Mr Gravendeel not to meet with the claimant. The key issue at court was whether the defendant’s position was reasonable on the basis that Mr Gravendeel might know confidential or privileged information as a result of meetings he had with the defendant and its experts.
The judge re-affirmed the position that any witness could be summoned to appear at trial. However, he stated that the position before trial was as follows:
- Generally a witness could not be compelled to provide assistance. He could make his own choice.
- A witness before trial would be subject to his duties of confidentiality and both before and at trial would be bound not to disclose any privileged information.
- It was not a contempt of court to tell a witness he may not reveal information which is truly privileged or confidential.
The judge concluded that a party could be in contempt of court if they applied pressure on a witness not to meet with the other side or indicated it would be wrong to do so. The witness should be clear that it is their own choice.
However, in this case, it was acceptable for the defendant to inform Mr Gravendeel of its concerns in relation to privilege/confidentiality and the defendant was not in contempt. The decision would be for Mr Gravendeel to take on whether he was prepared to meet with the claimant’s solicitors and the basis on which he would be prepared to do so.