With the drive to use technology to make litigation more efficient, it is surprising that we do not make more use of permitted technological aids, such as video link for oral witness evidence.
The general rule on witness evidence is that it must be proved at trial, by their oral evidence given in public and, at any other hearing, by their evidence in writing (CPR 32.2 (1)). This was confirmed in Barratt v Shaw and Ashton. However, one exception is the possibility of giving oral evidence via video link, rather than in person (CPR 32.3). Annex 3 of Practice Direction (PD) 32 sets out guidance for the use of video link (known as VCF), according to which the discretion should be exercised as follows:
“A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall costs saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation.”
- Why the witness cannot attend in person (for example they live aboard, illness which prevents travel to court, and so on).
- Why the witness evidence is crucial to the case and any prejudice likely to be suffered by either party.
- Any other circumstances (for example, short notice of a change of trial date).
Ideally you would want to make this application as soon as reasonably practicable, but it can be dealt with as a last resort on the first day of trial. If consent from the opponent has been arranged, the application could be dealt with on the papers (unless the court directs otherwise).
You will need to instruct a company which can actually deal with the practicalities of setting up the link between the court and the witness. The witness will need a device (laptop, PC or tablet) which has a secure internet connection, camera and microphone (and ideally a headset which gives privacy and mitigates echo). They will also need a copy of their signed witness statement (and any other evidence on which they should be cross-examined).
As soon as possible, you should advise the court where the trial is due to take place so that the trial can be listed for a room where there are appropriate facilities. If a court does not have the requisite equipment to enable video link, suitable alternative premises will need to be sourced. A technician and assistant from the court will need to be at hand on the day to assist with the set up.
The company will run a test with the witness beforehand. You will need to provide the Integrated Services Digital Network (ISDN) number for the court as well as the judge’s clerk’s e-mail address.
A number of cases have showcased the courts’ approach to evidence through video link:
Polanski v Conde Nast Publications Limited
The claimant in Polanski v Conde Nast Publications Limited, had been granted permission to give evidence from France by video link at first instance, on the basis that, if he attended in person in the UK, he was at risk of being extradited to the US where he had a criminal conviction and was waiting to be sentenced. The Court of Appeal dismissed this order but the House of Lords allowed the appeal on the basis that:
- The defendant would suffer no prejudice for the evidence being given by video link whereas the claimant would.
- The claim had been properly brought in the UK and should have been properly and fairly litigated in the UK.
The House of Lords came to this conclusion despite public policy principles of not encouraging litigants from escaping legal process (in another country).
Kimathi v Foreign and Commonwealth Office
The claimants who could not come to England for health reasons, were granted permission for their evidence to be given by video link. The claimants who could travel were required to come to England to give evidence (even if they would have preferred to have given evidence by video link). The judge considered that:
- It was ideal for evidence to be given physically in person.
- An unfamiliar situation (such as a video link) may affect cogency of evidence.
- Video link is especially unsuitable for vulnerable witnesses who needed interpreters and do not have intermediaries.
Falmouth House Limited v Micha’al Kamel Abou-Hamden
In Falmouth House Limited v Micha’al Kamel Abou-Hamden, the court refused an application by the defendant (who by then was residing in the United Arab Emirates (UAE)) for permission to give evidence by video link on the basis that this would contravene a previous order for attendance “in person”, and also given the delays in making the application.
The balance a court needs to achieve is between the convenience of giving evidence against the control that a court requires over conduct of the evidence.
Against this backdrop, practitioners should consider whether you can actually compel a witness to attend and give evidence in person (by way of a witness summons) or whether it will be sufficient to serve a hearsay notice for their evidence. After all, the costs, time, and practicalities of evidence by video link, may well exceed its benefits.
This article first appeared on the Practical Law Dispute Resolution Blog on October12, 2017.