Privacy series part five: Ways to protect your witness

Our series focused on privacy and transparency considers issues encountered by practitioners across a range of different dispute resolution specialities. In this blog, we explore the delicate balance between presenting crucial witness evidence in civil court and safeguarding witness privacy and safety.

In general, most civil proceedings are conducted in public and the public can access certain documents filed at court and referred to in public hearings. One of the issues that may arise when preparing trial witness statements is balancing the need to provide the court (and opponent) with factual witness evidence to support your client’s case, and ensuring that witnesses are offered sufficient protections where necessary.

Witness evidence of fact is dealt with by section 32 of the Civil Procedure Rules (CPR) and supplemental Practice Directions (PD) 32 and 57AC. In particular, PD 32 paragraph 18.1 sets out the requirements for the body of a witness statement which provides that a witness statement should state:

(1)   the full name of the witness;

(2)   their place of residence or, if they are making the statement in their professional, business or other occupational capacity, the address at which they work, the position they hold, the name of their firm or employer; and

(3)   their occupation, or if they have none, a description of the witness’s role.

Although a witness may be willing to assist and provide evidence, they may have legitimate concerns regarding the possible repercussions that could arise from disclosing to the public where they live or work. For example, a witness who has previously been subjected to harassment, threats or similar hostility may have legitimate concerns regarding how such information may be used.

An application can be made to court under CPR 32.1 to dispense with the requirement to disclose a witness’s place of residence and to replace the address with an alternative address, for example, care of a law firm’s address. When making such an application, the court will require good reason to depart from the CPR and formalities for a witness statement such as evidence of previous threatening or hostile behaviour towards the witness.

The case of Taylor v Evans involved an application to restrict the publication of the claimants’ names and addresses, including on publicly available documents. The Judge in Taylor referred to the two cases of Re Officer L and Adebolajo v Ministry of Defence as authority for the subjective fears of a party or witness being a relevant consideration when determining such an application. Balancing the importance of open justice against the risks that physical or other harm could be caused if the claimants' names were published, it was considered in Taylor that is was appropriate to permit the claimants to withhold their names from their statements. The application in respect of the claimants’ addresses was said to involve a lesser interference with the open justice principle. Nonetheless, it was confirmed that there must be grounds to justify any departure from the usual rule that addresses are disclosed. In this case the appearance of material about the case on extremist websites was considered to be sufficient reason, and the application for the addresses not to be disclosed on publicly available documents was granted.

In Axnoller Events Ltd v Brake, although relating to CPR 6.23 regarding the provision of an address for service, similar considerations applied and the court determined it had power under CPR 5.4B to withhold one party's address from another party if it considered it right to do so. However, there had to be a sufficiently strong factor to justify doing so, as would be required by the court when determining whether to allow the removal of a witness’ address from their witness statement.

The court can also put other protective measures in place when required, such as restricting the right of access to court records, directing that a hearing take place in private, and / or that the names of the parties or witnesses not be disclosed under CPR 5.4C and CPR39.2.

Further, when considering arrangements for trial, a solicitor could consider requesting (likely at the Pre-Trial Review) that the court puts special measures in place when a witness provides oral evidence when necessary under PD1A. Such measures could involve:

• the use of screens so that only the Judge and questioning Counsel can see the witness;
• considering whether a witness should provide evidence from another hearing room;
• limiting the length and form of questioning;
• arranging for additional breaks; or
• fixing the trial timetable to provide certainty to a witness as to when their evidence will be provided.

The adjustments required will, evidently, vary on a case-by-case basis. However, it is useful for solicitors to consider, where a witness has expressed legitimate concerns, whether any measures would be appropriate to adopt, and whether the court is likely to allow such measures.  

About this author

If you have any questions or concerns about the topics raised in this blog, please contact Chantelle Tang. 

Further information

Chantelle Tang is an Associate in the Dispute Resolution Team. Her experience covers a wide range of disputes, with a particular focus on civil fraud, commercial and contract, shareholder and director disputes.