The Dekagram: 3rd June 2024

This week’s Dekagram is an update on the factors the court is likely to take into account when considering whether to allow a party to call witness evidence by way of videolink – and a reminder that obtaining permission to do so is far from a foregone conclusion, particularly where issues of credibility arise.

Happily there will be no such issues at the PEOPIL conference in Lisbon this week, which the team will be attending, not least to enjoy the opportunity to heckle Sarah Prager KC as she delivers a presentation on mass torts and group actions. Readers are cordially invited to join us for a drink or (more challengingly) breakfast at the conference hotel on Thursday and Friday.

Giving Video Evidence from Abroad: an Update

In an extempore and currently unreported judgment, Freedman J considered an application for permission to give evidence from abroad via a video link.

The Facts

In Martin v Herbert Smith Freehills LLP the claimant was a former partner in the Singapore office of a large accounting firm who had been made subject to a worldwide freezing order. He sought representation from the defendant law firm for the return date, but the defendant law firm identified a potential conflict of interest in that it represented the accounting firm’s London division in separate litigation. The law firm then informed the London office about the claimant’s case, which then informed the Singapore office of the same, which led to the termination of the claimant’s employment with the accounting firm.

The claimant then sued the law firm, alleging breach of confidence, breach of contract, breach of fiduciary duty, and negligence.

In advance of a ten day trial, the defendant law firm applied for permission for a Singapore-based witness to give evidence from abroad.

The Law

Freedman J considered CPR r.32.3, under which the court may allow witness evidence to be given by way of video link. There is familiar guidance for video conferencing set out at Annex 3 to PD 32, as well as in the various High Court Division guides, which recognise the convenience that video evidence brings, in addition to the time and cost savings it allows. It also recognises the downsides, in that the court can exert less control over a witness appearing remotely. The burden is on the party seeking to deploy remote witness evidence to show that the evidence is being used for good reason and to serve a legitimate purpose. Applications should be considered in light of the overriding objective.

The Decision

Applying the law to the facts, Freedman J noted that there were suitable videoconferencing facilities in Singapore, that there were no language difficulties for the witness, who was a native English speaker, and that there would be costs incurred for the witness travelling from Singapore to London. The costs involved, however, would be modest in relation to the value of the claim, and to the overall costs involved. The case was factually and legally complex, of a high value, and of importance to the parties, and it was agreed that the witness’ evidence went “to the heart” of the dispute. Alleged inconsistencies in the witness’ evidence meant that cross examination of the witness would be particularly important. It was also significant that the other witnesses involved would be giving evidence in person, rather than remotely.

Freedman J concluded that balancing these factors, fairness required that all parties and their witnesses should face the court in person. The disruption to the witness and his office were outweighed by the importance to the administration of justice that he should give evidence in person.

Analysis

The taking of witness evidence by video link had become somewhat commonplace during and since the Covid-19 pandemic. Most lawyers will be familiar with the difficulties the practice involved, from witnesses not having access to certain documents at one end of the spectrum to those witnesses who would look off camera for a suspicious amount of time before answering each question. There is no doubt that witness evidence in person is preferable, but modern civil procedure recognises that there are circumstances in which it continues to be appropriate.

Proportionality, both in the narrow sense of cost but also in the wider overriding-objective sense, which involves a multi-factorial assessment of what is required to ensure that justice is done for the parties, is a critical concept within the CPR. Freedman J’s decision is a useful illustration of how the court will go about balancing the above factors in determining CPR 32.3 applications but, as always, each case will turn on its own facts.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.