For those of us who conduct civil litigation cases before the courts, it is worth remembering that the courts have wide ranging powers to deal with contempt of court or other misfeasance in proceedings, whether by advocates or by clients or witnesses.

A few years ago, an unfortunate solicitor was sent to the cells when his mobile ‘phone went off in court! Earlier this year, reports reached us of a county court judge who jailed a litigant for contacting his lawyers overnight in the midst of cross-examination. The judge had warned the client not to communicate with any one (including his legal advisers) until he had finished giving evidence. It seems that the client, foolishly, sent a number of emails overnight to his solicitors and counsel, although evidently these were not read. He also spoke to a third party, before his cross-examination continued the following day. The trial judge, Her Honour Judge Melissa Clarke, was not impressed. Once details of his activities were discovered, he was remanded in custody overnight and his claim (and his defence to a counterclaim) struck out the next day, with costs ordered on an indemnity basis.

The matter went before the Court of Appeal which ruled that the judge’s actions in sending the litigant to prison and in striking out his claim were “unfortunate and completely disproportionate”.

It may be that, on reflection the judge did (as the Court of Appeal said) overreact, but this case is also a salutary reminder of the solemnity of the court process and the importance of our duties to the court, whether we are lawyer or client.


Jeremy Wilding

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