The limits of the court’s power

Family Law|January 22nd 2019

I’ve quite often written here about the consequences of failing to comply with the wishes of the court. I’ve also quite often written about how judges get things right, unlike so many parties to family proceedings. However, judges do not always get things right (in my defence, I have never suggested that they do), and a recent case is a prime example of this.

Whilst it may not be a family law case, Hughes Jarvis Ltd v Searle & Another is I think certainly of interest to anyone involved in family court proceedings. It concerns the common situation in which the court adjourns a case before a witness has completed giving their evidence. In such a situation the witness is often given a warning by the judge not to discuss their evidence with anyone else during the adjournment. The reason for this warning was explained by Lord Justice Patten, who gave the leading judgment in Hughes Jarvis:

“The purpose of the warning is to protect the witness from any attempt by a third party to influence their evidence and also to ensure that, so far as possible, the evidence which the witness gives is his or her own best recollection unassisted by any other person. Compliance with the warning both protects the witness and the effectiveness of the trial process.”

Obviously, this can apply equally to a witness giving evidence in a family case.

So what went wrong in the Hughes Jarvis case?

The witness, Mr Jarvis, was giving his evidence on the first day of the hearing, when the case was adjourned for the day. The judge gave him the warning, but it came to light the next day that Mr Jarvis had sent a number of emails to his solicitors and his counsel. His counsel told the court that she had not read the emails and had simply replied by email saying that he must not communicate with her whilst under cross-examination. However, it later transpired that he had also spoken overnight to a third party, as a result of which he changed his evidence.

The judge responded by stopping the hearing. She remanded Mr Jarvis in custody overnight and the next morning committed him to prison for 14 days (suspended for three months) for contempt. The case (which was a claim by Mr Jarvis’s company) was struck out. Mr Jarvis appealed, to the Court of Appeal.

The Court of Appeal allowed the appeal.

Lord Justice Patten said that when a witness failed to comply with such a warning from a judge, it was necessary for the judge to make an assessment of the damage which that had caused. Here, the emails had not been responded to, and there was therefore no damage caused by them, as the judge recognised. As to the contact with the third party, the change of evidence did not mean that the evidence was untrue, or that none of Mr Jarvis’s evidence could be relied upon. If anything it had helped the defendant (the other party).

As to the committal, Lord Justice Patten said that the judge had no jurisdiction to deal with the alleged contempt, except as a breach of an order of the County Court. Here, no such order had been made.

And as to the striking out of the claim, Lord Justice Patten found that this was an unjustified overreaction. He said that the situation faced by the judge, whilst undesirable, was in fact manageable had the judge allowed herself and the parties time to investigate the facts and to make a more informed assessment of the damage which the conversation with the third party had caused.

Giving a judgment concurring with Lord Justice Patten, Lord Justice Leggatt said that the judge’s response to what Mr Jarvis had done “could well serve as a case study in how not to deal with such a situation”, and described the judge’s action in remanding Mr Jarvis in custody overnight as “a misuse of judicial power”.

The committal order was set aside and the claim was reinstated, to be heard by a different judge.

You can read the full Court of Appeal judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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