The Dekagram: 30th June 2025

This week Julia Brechtelsbauer grapples with the continuing issues around taking evidence from abroad, and examines a case which illustrates well the problems, both legal and practical, that can arise when dealing with witnesses located in another jurisdiction. Meanwhile, Andrew Spencer asks whether UK law is about to diverge from EU law on flight delay, and what will happen if and when it does.

Videolink Evidence: The Saga Continues…

In the world of CVP, teams and zoom-conferences, it is an easy-enough assumption (by both clients, witnesses and professionals) that a witness can give evidence from abroad remotely. However, not all foreign governments will be willing to allow people to give evidence before a Court in England or Wales by video-link. It is a potential minefield that must be addressed and dealt with sensitively. If it is not, it can cause a multitude of issues, including diplomatic difficulties, as well as potential prosecution of whoever gives evidence from abroad. The issues further extend to the fact that that the privacy warning in respect of a hearing is very difficult to enforce as contempt of court will not bite if the contemnor is abroad. So, stakes are high! The complications were recently addressed in PZ v ZD (Financial Remedies: Needs: Adverse Inferences: Taking Evidence from Outside the Jurisdiction) [2025] EWFC 171 (B).

PZ v ZD was a financial remedies case (i.e. concerning the splitting of assets following divorce). It was listed for final hearing (trial) on 19^th March 2025. On 7^th March 2025 the husband applied to give his evidence from Pakistan. This came before a judge for box-work on 11^th March 2025 and was directed to be listed to be heard alongside the final hearing on 19^th March 2025. The application confirmed the reason for non-attendance in person was medical. A medical letter was provided which advised the husband to stay in Pakistan for long-term management and frequent follow-up visits. The wife opposed the application – highlighting the husband’s ability to attend in person previously, and not only did he not have proper permission from the Pakistani central authority, but also that the court was essentially being presented with a fait accompli – either accede to the application or render the final hearing ineffective.

DDJ Evans made reference to Practice Direction 22A Annex 3 applicable to video conferencing in the family courts.

The guidance states:

1. At paragraph 3 – “VCF may be a convenient way of dealing with any part of proceedings- it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. 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 cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.”
2. At paragraph 5 – “It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.”

The case concerned Pakistan, which is neither a signatory to, nor a connected party to, the Hague Convention of 18^th March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.  The judge emailed one of the FRC (Financial Remedies Court) Leadership judges setting out that there was no standing agreement with Pakistan with respect of taking evidence. He then sent an email directly to the Taking of Evidence Unit at the Foreign, Commonwealth and Development Office. FRC leadership replied saying that there was informal guidance from the FRC judges that in family cases there was no need to seek prior authorisation unless there is clear evidence that the giving of evidence from abroad may expose the witness to risk of prosecution or similar consequences in that country. The judge decided not to adjourn the hearing due to scarcity of court resources, and that it would not have been in the interests of either party to adjourn if the final hearing could in fact occur as planned. Shortly after 2pm, and after his decision, the judge received a response from the Taking of Evidence Unit at the Foreign and Commonwealth Development Office. It suggested that since Pakistan is not a party to the Hague Convention as previously mentioned, a Letter of Request is required for the taking of evidence by videoconferencing. This would require the representative of the party wishing to give evidence from aboard to contact the Foreign Process Section in the Royal Courts of Justice to ask them to prepare a letter of request to Pakistani judicial authorities requesting the taking of evidence by video conferencing. Said letter and response would then be forwarded through diplomatic channels.

At paragraph 88 of the judgment, guidance as to the content of that letter was described:

“… a letter of request would need to be prepared to the competent judicial authorities in the country concerned requesting authorisation for the ToE by VC. A separate letter of request would be needed for each witness to be examined. This letter would need to … … state the nature of the proceedings for which the evidence is required, giving all necessary information with regard to them; and giving the questions to be put to the person to be examined or the subject matter about which he is to be examined [and it would] need to be accompanied by local language translations.”

Another point of note, DDJ Evans stated at paragraph 84 of his judgment:

“Had I known that it would be something that would cause such a considerable amount of delay, I might have thought twice, as what ultimately happened was that the hearing was repeatedly interrupted on occasions too numerous to mention, by either a power cut or some form of broadband failure / internet failure – I do not know whether it was broadband, actually, but some form of disruption to the internet link to Pakistan, which meant that the husband would disappear from the screen and then reappear in a somewhat haphazard manner throughout the entirety of his cross-examination.”

Practically, there are two barriers to giving evidence from abroad. The court’s permission is required pursuant to CPR 32.3, for a witness to give evidence via video link. And, in order to obtain that permission, there must be permission or evidence of acceptance from the state from which the person is to give evidence.

The correct steps depend on whether the country from where someone is to give evidence is part of the Hague Convention 1970 or not. The Convention provides for the taking of evidence by means of letters of request and diplomatic or consular agents and commissions. A letter is issued to the Central Authority of the signatory state where the evidence is located. The Foreign Process Section of the RCJ (foreignprocess.rcj@justice.gov.uk) should be contacted to confirm whether there are any formal arrangements required before the taking of evidence by video link can proceed.

If the country is not part of the Hague Convention, then the appropriate step is to contact the Taking of Evidence Team at the FCDO (TOE.Enquiries@fcdo.gov.uk) for advice on contacting the Foreign Process Section in the RCJ (the central authority in England and Wales under the Hague Convention).

Some practical tips can be gleaned from this case as follows:

1. Clients or potential witnesses must be informed of the rule that permission must be obtained, and it is not guaranteed, to manage expectations.
2. As with all matters – applications are best made with the most amount of information possible, and at the earliest opportunity.
3. Do not apply for permission from the court without having explored whether the foreign jurisdiction would permit giving evidence to occur. Ideally, permission should be obtained from the country and then the application is made to the court.
4. Even if permission is granted both by the foreign jurisdiction and the court, this does not impact the practicalities of giving evidence. If there are connection issues – that is only going to build frustration against potentially your client or the witness. This may interrupt otherwise good answers when put under scrutiny during cross-examination. It would be prudent to arrange a conference in the same conditions at which they will be giving evidence. It is easy to assume that the internet functions in the same way as here, however – some countries suffer connectivity issues at particular times due to high traffic. This obviously must be reconciled with time-zones.

About the Author

Julia Brechtelsbauer gained tenancy having completed pupillage at Deka Chambers. Before coming to the Bar, she took an LLM in Comparative Private Law at the University of Edinburgh, and during this time she also tutored tort and EU law privately at undergraduate level. Studying Law with Spanish Law at the University of Oxford, Julia came first in her cohort in EU Law and Comparative Private Law, placing 5th overall. She has also been published by the Oxford University Undergraduate Law Journal, focusing on the defence of illegality in tort law. She has already been led by Sarah Prager KC in a paraplegia case involving complex issues around assumption of responsibility and is developing a thriving practice in international work.

Hesitation, Deviation, or Repetition? Denied boarding compensation in the UK and EU

Reform of passenger rights under EC Regulation 261/2004 (which applies in the UK as assimilated EU law) has been on the horizon for some time. If and when reform takes place, it is likely that the UK and EU rules will become quite different (deviation), not least because the only way they could remain the same, after reform, would be if the UK and EU adopted the same reforms at the same time.

The most recent indications from the UK government (as at the Summer of 2023) were that it was considering a very significant change: moving from the current system of fixed compensation for flight delays, to a system more akin to railway “delay repay”, where the compensation would relate to the price paid for the ticket. This would mean much lower levels of compensation payable to short-haul passengers on budget airlines: analysis by consumer group ‘Which?’ suggested that compensation payable to passengers on a flight from Edinburgh to London would be reduced by 80% (assuming an average ticket price of £44) if this change were made. As yet, reform of the UK system has stalled (hesitation) and the EU and UK systems remain aligned. Indeed, the Aviation (Consumers) (Amendment) Regulations 2023 amended the UK denied boarding regulations partly codifying CJEU decisions (repetition).

But deviation now looks likely once more, with changes proposed on the EU side. At the beginning of this month new EU rules were proposed by the Council of the European Union. These, if passed by the European Parliament, would increase the amount of delay required for compensation to be payable from 3 hours to 4 hours for short flights, and to 6 hours for longer flights. Compensation payable would be increased by €50 for short-haul and €100 for long-haul flights. The proposals would increase passenger rights if airlines do not provide rerouting within 3 hours of disruption, and enable passengers to claim reimbursement costs of up to 400% of the original ticket. Big changes are also proposed to “no show” rules. Currently, “no show” rules often mean that if a passenger buys a return ticket and fails to fly on the outbound flight, the airline cancels the return booking. This prevents passengers who only ever intended to travel one way from taking advantage of cheaper return flights, and also incentivizes passengers whose plans change to move or cancel their outward flights, rather than simply not turning up, meaning the seats can be re-sold. But the proposals would prevent airlines from cancelling “no show” passengers’ return flights. Whilst some commentators have focused on the changes to compensation for flight delay and argued that these proposals reduce consumer protections, looked at in the round there is an argument that consumer protections would be increased if these proposals come into effect.

Where would deviation leave UK passengers? The UK’s legislation applies to those flying from UK airports, and those flying to the UK on UK or EU carriers. It also applies to passengers flying into the EU on UK carriers. If EU rules change, such passengers should continue to be able to rely on the unchanged UK rules. But what about when such flights are provided by EU carriers, or from EU airports? Would both sets of rules apply? Would a passenger be able to elect which compensation rules to rely on? Will UK courts apply the new EU rules in place of UK rules, and vice versa? This will be an example of divergence from EU rules having very real practical consequences for the around 9% of flights that are subject to delays. 

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.