Purdah, she wrote: High Court considers breaches of witness sequestration rules
The High Court’s recent judgment in Cabo Concepts Ltd and The Licence World Ltd v MGA Entertainment (UK) Ltd and MGA Entertainment, Inc [2025] EWHC 1451 (Ch) reiterates the importance of compliance with the witness purdah rule. The rule dictates that witnesses cannot discuss the case or their evidence with others, including their legal team, once they have begun giving evidence.
Background
What happens when witness evidence is paused during a break, or overnight in between hearing days? Purdah is the legal rule that prohibits witnesses from discussing their evidence with others, including their legal team, after they have started giving evidence. Witness sequestration is designed to preserve the integrity of evidence and prevent witness coaching.
The High Court recently commented on the importance of the rule in its judgment on the long-running dispute between MGA, one of the world’s largest toy manufacturers, and Cabo, a UK-based toy start-up.
Following a six-week trial, Mrs Justice Bacon found that MGA had abused its dominant position and made unwarranted threats of patent infringement proceedings. However, whilst the court was persuaded by the claimant’s case on liability, no damages were awarded. This was because the Court held that Cabo had ultimately failed to establish causation: the Court found that Cabo would not have traded profitably even if MGA had not engaged in the abusive conduct, therefore no loss was suffered as a result of MGA’s actions.
The Court also addressed breaches of witness purdah committed by the defendant’s CEO, Mr Larian, in the course of the hearing.
Witness purdah breaches
The Court criticised Mr Larian, finding that he had breached the purdah rules multiple times.
In particular, Mr Larian had: (1) emailed the defendant’s lawyers a list of proposed questions to be put to another witness in an upcoming cross-examination (2) contacted a business associate requesting a copy of a document so that it could be put to another witness; and, (3) contacted a colleague to obtain certain sales information, which he subsequently referred to in evidence the following day.
The defendant’s solicitors reported the first breach to the Court, as well as taking custody of Mr Larian’s phone to examine whether he had communicated with anyone else. It was through this process that the second and third breaches were uncovered.
The Court found Mr Larian’s explanations for his conduct “unsatisfactory”. For example, his claim that he sent the email to his lawyers by accident and had only intended to save it as a draft, was “unconvincing”; the more likely explanation was that he “understood the purdah rules but did not take them seriously”.
Overall, the Court found Mr Larian to be an “unreliable witness”. This impression was attributed to the “defensive” and even “facetious” manner of Mr Larian’s evidence, and “reinforced” by his “multiple breaches of purdah”. Ultimately, the Court concluded: “I can give no weight to Mr Larian’s evidence where it is not corroborated by the contemporaneous documents or the evidence of other more reliable witnesses.”
What are the other possible consequences of a breach?
At its highest, a breach of the rules may even prove fatal to a claim. In Chidzoy v British Broadcasting Corporation UKEAT/0097/17, the Employment Appeal Tribunal upheld an employment tribunal's decision to strike out discrimination claims brought by a BBC reporter, after she was overheard discussing her case with a journalist during an adjournment while she was still under oath.
The Court of Appeal has also not ruled out the possibility of holding a witness in contempt of court for discussing their evidence during an adjournment, “particularly if he or she did so with a view to providing the court with a recollection of events which the witness did not have or to providing false evidence” (Hughes Jarvis Ltd and another v Searle [2019] EWCA Civ 1).
However, it appears that a ruling on contempt would be reserved for very rare circumstances. Indeed, in Hughes Jarvis Ltd and another v Searle [2019] EWCA Civ 1, the Court of Appeal overturned a County Court decision on strike out and contempt; the County Court had struck out a claim after finding that the second claimant, whose oral testimony had shifted following discussion with a third party during an overnight break, was in contempt of court. On appeal, the Court commented that whether the relevant type of contempt had occurred would “depend on what was discussed, the reasons for it and the effect which it had on the trial process”, but on the facts of the case it was not persuaded that the criminal contempt had taken place.
Comment
Witnesses under cross-examination are warned that they cannot talk to their legal team or anyone else about the case until they are finished giving evidence. Indeed, the Court in Cabo Concepts Ltd and The Licence World Ltd v MGA Entertainment (UK) Ltd and MGA Entertainment, Inc [2025] EWHC 1451 (Ch) noted that Mr Larian received two such reminders before he proceeded to breach the rules the same day.
This High Court judgment adds to a body of case law which illustrates the consequences likely to flow from those breaches, and is a reminder of the seriousness with which the Court will treat a breach of the purdah rules.