Two witnesses in a remote construction case were overheard having a private telephone conversation about the evidence one of them was giving during a break in proceedings, it has emerged.
But His Honour Judge Russen QC, sitting as a High Court judge in Bristol, said the short length of the break and call gave him comfort that one was not feeding the other “lines” for his evidence.
In Dr Jones Yeovil Ltd v The Stepping Stone Group Ltd  EWHC 2308 (TCC), the judge said defence witness John Lewin was in the second day of his testimony, which he was giving via video link on his tablet.
During a 10-minute mid-morning break, he was overheard by the claimant’s counsel, James Frampton, and a representative of the defendant’s solicitors having a private telephone conversation with fellow defence witness John Bailey “while the microphone on Mr Lewin’s tablet remained switched on”.
HHJ Russen said: “I did not immediately before that break remind Mr Lewin not to speak to anyone else about his evidence, while he was giving it, but I had given him the usual admonition against doing so at the end of the previous day’s testimony.
“No doubt having also heard me give a similar warning to previous witnesses, he therefore knew not to do it.”
The judge had paused the recording of the hearing during the break, so there was some uncertainty over what was said, but Mr Lewin accepted that he had telephoned Mr Bailey to “ask him how I was doing”.
Initially, Mr Lewin said Mr Bailey had told him to hang up but then admitted that they did exchange further words. Mr Lewin said: “Am I getting my knickers in a twist? … Sorry, just stick to meter readings do I?”
HHJ Russen said: “Mr Lewin said that all Mr Bailey told him was ‘No, carry on’, before accepting that this did not make sense. When Mr Frampton later asked Mr Bailey about the conversation, he said he had only told Mr Lewin he was doing ‘Okay’.”
This was “an unfortunate episode”, the judge said, and “guarding against the obvious risk of contamination of a witness’ independent recollection of events is the reason why there should be no consultation with others while it is being tested in the witness box”.
He continued: “It was apparent to me that both men regretted it. Although the picture is not entirely clear, I am satisfied that the shortness of the break and the even shorter duration of the call within it means that there was no question of Mr Lewin being fed his lines by Mr Bailey.
“Regrettable though it was, I therefore do not point to it as a reason to draw a conclusion from Mr Lewin’s testimony (or Mr Bailey’s for that matter) which I would not otherwise have reached.”
The judge also highlighted that the pair’s witness statements were “in materially identical terms to the point of them sharing common typographical errors”. This “obviously causes some concern about how much of each reflected the witness’ own recollection”.
The judge ultimately found for the claimant and dismissed the defendant’s counterclaim.