By Elliot Kay
Da Costa and Another v Sargaco and Another  EWCA Civ 764
There is a common trend in County Courts up and down the country for witnesses to be excluded from the courtroom during the evidence of another witness and/or a party when there are allegations of fraud or collusion, commonly in relation to a road traffic accident. The pragmatic rationale for such an approach is quite clear- if witness X hears what the Claimant says in cross examination, X may tailor his or her evidence to be consistent with that of the Claimant in a bid to bolster the case.
The Da Costa case involved a common allegation of a staged accident. In short, it was alleged that the first Claimant knew the first Defendant and that they had conspired to stage a road traffic accident. During the trial the judge excluded the first Claimant from the courtroom whilst the second Claimant gave evidence (but, as it happened did not enforce the same exclusion the other way round). After the Claimants claims were dismissed they appealed on the basis that they had been unfairly excluded from the trial contrary to their Article 6 right to a fair trial (amongst other grounds of appeal).
In summary, the Court of Appeal held that prima facie a party to a civil hearing does have a right to be present throughout their trial unless there is good reason to depart from that starting position. The difficulty in this case, was that the judge at first instance did not appear to have had any regard to that starting position and simply excluded the first Claimant from the courtroom without giving clear reasons for doing so. Further, the Court of Appeal did not consider it appropriate for the first Claimant to be excluded in a case of this nature. Lady Justice Black observed:
“However, for myself, I find it very difficult to contemplate there being any sufficient reason for taking this course in a case such as the present one. At the very least, it was likely to leave the first claimant with a sense of injustice, and it risked the entire trial being impugned on the basis that the exclusion of the claimant rendered it unfair. In short, it was the wrong order.”
However, the Court of Appeal went on to find that no prejudice had been caused to the first Claimant by not hearing the second Claimant’s evidence and it must be distinguished from a case where one party is excluded from hearing the opposing party’s evidence. It was held that no prejudice had been caused to the first Claimant. In the absence of any prejudice being caused to the first Claimant, the Court of Appeal did not agree that the trial process had been rendered unfair.
In summary, it appears that the Court of Appeal considers that (i) the exclusion of a party to a road traffic trial where fraud is alleged is wrong in principle but (ii) it will not interfere with such an exclusion unless prejudice is caused to the excluded party.