Taking evidence from witnesses who are under obligations of confidence
19 January 2017
In the recent decision of Glenn and Another – v – Watson and Others  EWHC 3259 (Ch), Nugee J undertook an assessment of the obligations and duties of confidence owed by a potential witness and the extent to which their participation is fettered in litigation.
The claimant’s pleading made reference to confidential material and documents. The defendants were interested in the role of an individual (“M”) and his evidence on these matters. The claimant did not wish to rely on M as a witness so the defendants assumed his evidence might be helpful to their case.
Since there is no property in a witness, the ordinary course would be for solicitors to meet and interview M so an assessment might be made as to whether his evidence is supportive. In this instance, since it was common ground that M owed duties of confidentiality to the claimant, a protocol was agreed in advance with a list of permissible topics. However, before the interview took place, the defendants sought to expand on the topics and introduce questions relating to the confidential material appearing in the pleading. The defendants argued this was justified on the basis that the pleaded reference operated as a waiver of confidence – an outcome they considered to be analogous to that which would arise in respect of privileged material. The claimant objected and the issue came before Nugee J.
Nugee J disagreed with the defendants and upheld M’s obligations to respect confidence. He clarified that privilege is not waived merely as a result of a reference in a pleading: an election arises and a party must decide whether to maintain reliance or withdraw the reference. If they maintain their reliance, privilege is ultimately lost but not as a matter of course.
Nugee J went on to analyse the protections arising under confidentiality and privilege. He observed that they are treated very differently in the course of litigation. Privileged material is protected from inspection and, at trial, a witness is immune from questions which trespass on its protection (certainly the owner of the privilege is entitled to object to a witness responding). In contrast, confidentiality does not of itself prevent inspection of relevant material and a witness is free to answer questions at trial without being in breach of duties of confidence. However, during the period up to trial, Nugee J confirmed obligations of confidentiality did preclude M from being interviewed on particular topics and that the defendants’ entitlement to inspect related (i.e. confidential) material did not undermine those obligations. Nugee J drew support here from CPR 31.22 which prohibits litigants from making collateral use of documents which are disclosed during proceedings.
This leaves the defendants in an unsatisfactory position. They are prohibited from asking M about confidential material so cannot know his position in certain respects. If they call him as a witness he will give his evidence freely at trial but they will have had no prior indication of what he might say and run a risk that he might cause significant damage to their case.
The decision is a useful reminder of the distinction between privilege and confidentiality but more fundamentally it serves as a warning to potential witnesses. Confidence must be respected in the period leading up to trial, even though restrictions fall away at trial itself. The use of carefully prepared protocols (backed by undertakings given by interviewing solicitors) is a necessity and, in relevant cases, something interviewees should insist on as a pre-condition to attending an interview.