The Dekagram: 15th September 2025

This week we have a bumper issue dealing with a number of crucial developments: Andrew Spencer considers an oft-neglected aspect of local standards evidence, Julia Brechtelsbauer brings us up to date on the Quest for Videolink Evidence, and Megan Bithel-Vaughan examines the recent guidance of the Court of Appeal on anonymity orders. Meanwhile readers are running out of time to register for the first dekinar of the season, also on local standards: Webinar Registration – Zoom.

Testing local standards

In Robinson v TUI (HHJ Blohm KC, Bristol County Court, 4th September 2025) the question for the court was how the agreed standard for slip-resistance for surfaces around swimming pools should be measured. Should an expert testing the swimming pool use the test methodology that was used at the time the floor was installed? Or should the floor be tested using the up-to-date testing method?

According to the tests carried out by the Claimant’s expert – using the up-to-date test methods – the tiles in question were only suitable for flat, dry, indoor areas. But the Defendant’s expert had tested the floor in accordance with a since-repealed testing standard, which was current at the time the floor was installed, and the floor complied with the standard according to these tests.

The Claimant’s argument was that the standard had not changed. What had changed was that testing methods had been improved, and become more accurate – so more accurate at telling whether or not the standard was met. The floor had to be maintained at the required standard, and the way this should be tested was using the later test method, not the earlier method. The Defendant’s argument was that judging the floor using the later testing standard was akin to requiring the floor to meet enhanced standards current at the time of the accident, but not at the time of the installation of the floor, which is contrary to the approach set down by the Court of Appeal in Japp v Virgin Holidays.

The judge heard from both experts and determined the issue as a matter of fact. The judge’s findings were:-

1)       Spanish law did provide for the floor to be considered by reference to the standard as tested by the up-to-date testing method. The change in standard for testing had substituted a more accurate, but aim-of-outcome identical, method and the judge was satisfied this later method was required to be used to test flooring, regardless of when the flooring was installed.

2)       Further, the judge accepted the evidence of the Claimant’s expert that, as a matter of custom and practice, and regardless of the strict legal position, hoteliers would test their floors using current testing methods, and not testing methods from the time of the installation of the floor. As a matter of custom and practice, if the floor were to be tested it should be tested in accordance with the latest test methods.

3)       But in any event the judge considered (on the evidence) that the test results from the Claimant’s expert were more likely to be accurate than the Defendant’s and more accurately reflected the performance of the floor at the time of the accident.

Accordingly, the judge found there was a breach of duty and that the tiles did not meet local standards for slip-resistance.

This case is an important reminder that there is room for debate as to how a local standards should be ascertained in a given case. Testing methodology can and does change, and it’s important to be on the alert when litigating a claim of this nature to ensure that the test undertaken is the right test, done in the right way, to establish whether the local standard was met or not.

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.

Videolink Evidence: the Saga Continues Part 2

In the Dekagram Dated 30 June 2025, (available here) I considered the process and perils of giving evidence via video-link from abroad. Unsurprisingly, the issues related to this have continued and have been subject to further scrutiny by the courts. This Dekagram considers two updates:

(1) what happens if permission is not granted by the foreign jurisdiction, and the hearsay provisions come into play, and

(2), it has been recently confirmed that no permission from abroad is required in the family division.

What if no permission is granted?

A very realistic outcome, even if those most prudent steps are taken, is that the evidence simply cannot be given from abroad. Say for example, that the witness is from China. It is highly unlikely that a response will be received, or permission will be granted. This occurred in Clarke v Guardian News and Media Ltd [2025] EWHC (KB); a case which concerned an action for libel against the defendant newspaper. The Claimant had filed a number of witnesses, some of whom did not attend the trial. Late service of hearsay notices meant that the Defendant had not been able to seek summons – although in the case of witnesses abroad, the court of course would not be able to summons said witnesses. One of the witnesses, Mr Tessarin, turned out to be in China for the duration of the trial. This was addressed by Mrs Justice Steyn DBE at paragraph 83:

“On the face of it, a better reason has been given for Mr Tessarin’s non-attendance, namely that he is in China, and that is not a country with which the necessary diplomatic arrangements are in place to enable evidence to be given by a video link. However, even in Mr Tessarin’s case, he has not personally given any evidence as to his reason for not attending the trial. The Claimant had represented until the second day of the trial that Mr Tessarin would attend to give evidence. I have been given no explanation as to when Mr Tessarin’s trip to China was arranged, the dates or purpose of his visit, or why he was abroad during a long scheduled trial. A letter from TKP on 12 March 2025 stated that Mr Tessarin would be in China “for the period during which the Claimant’s evidence takes place“, whereas the (unsigned and undated) hearsay notice states he is in China for “the trial’s duration“. Given this inconsistency, and against the background I have described, I cannot be satisfied that Mr Tessarin was, in fact, in China for the entire six-week trial period. In the circumstances, I give no weight to Mr Tessarin’s untested evidence regarding ‘Ivy’ and Mr Fairbanks, or to his assertions that he never saw any behaviour from Mr Clarke that could be construed as harassment or misconduct. However, I accept his evidence regarding himself and his relationship with Mr Clarke at paragraphs 1 and 4-7, subject to the caveat in respect of paragraph 4 that it is clear that Mr Fairbanks and Mr Clarke were close friends in 2011.”

This case underlines some practical aspects of seeking to adduce witness statements as hearsay:

1. Notice is best given at the earliest available time.
2. Therefore, liaison with the witness as to where they will be during the trial should be actively managed.
3. Although strictly not necessary, it may be best to support the notice with a witness statement (including exhibits) from the witness who is unable to give evidence from abroad, and why they do not have permission, or otherwise unable to attend England, or another country form which they could permissibly give evidence.

In addition to utilising hearsay provisions, it is also emphasised that it may be easier to obtain permission from some countries than others, particulars those with Common Law roots (such as Canada, America, Hong Kong, Australia etc) or are part of the 1970 Hague Convention. If the witness is located close to one of these more accessible jurisdictions, it may be most convenient simply for them to give evidence from that location, as opposed to their home country for which permission would be highly unlikely.

No permission necessary in the family jurisdiction

The Dekagram from 30^th June 2025 considered a family court decision about giving evidence from abroad. This has subsequently been addressed in the High Court. In Newcastle City Council v JK and Others [2025] EWHC 1767 (Fam) Mrs Justice Poole considered evidence via video-link of the Father and members of the Father’s family from Austria.The Father’s solicitor had written to the FCDO prior to the Father giving evidence, during the final hearing, which revealed that they would require 20 working days’ notice in order to submit the request and for Austria to respond. Obviously as the final hearing had already begun, such a delay was rather inconvenient. Mrs Justice Pool considered Agbabiaka (Evidence from Abroad: Nare Guidance) [2021] UKUT 00286 (IAC). This case reiterated that:

(1) giving evidence from abroad can breach sovereignty of the other State, and harm diplomatic relations,

(2) the position of the Secretary of State for Foreign, Commonwealth and Development Affairs is there ought to be permission from a foreign State before oral evidence can be given from that state and

(3) it is for the party who is seeking to have oral evidence from abroad to make the necessary enquiries.

Mrs Justice Poole considered that this decision was not binding on the Family Court, and further, different considerations apply in the family law context (see paragraph 117 of the judgment).

Whilst the family courts do have the unique aspect of being driven by the best interests of the child (and there being a statutory obligation to complete care proceedings in 26 weeks), it is not entirely clear how issues of sovereignty apply in civil matters, but not Family Court matters. The potential fallout of the same cannot be underestimated; see for example in Robinson v Chief Constable of West Yorkshire Police [2017] EWHC 159 where the question before the court was whether voluntary help provided by the UK police to the foreign state of the Turkish Republic of Northern Cyprus inadvertently recognised the state, contrary to UK foreign policy. There are a number of governments which could be inadvertently recognised and validated by the UK if evidence were to be given from said country, such as the Taliban government in Afghanistan, and the Palestinian state.

It remains to be seen whether this decision will have an influence on other courts in the civil jurisdiction and the increasing use of video-link evidence from abroad. This is particularly given that one of Mrs Justice Poole’s considerations was that “In many cases parents or witnesses abroad cannot realistically travel to England for the purpose of giving evidence. Legal, financial, or other restrictions may be imposed on them.” (Paragraph 117 g.). This is of course not unique to family proceedings.

It is also worth noting that the above may be inherently tainted by what is a Common Law understanding of the judge’s role within proceedings. In the jurisdiction of England and Wales, we have an adversarial system, where evidence is primarily elicited by advocates. In contrast, in Civil Law jurisdictions there is an investigatory system, where the judge plays what would appear to the Common Law advocate, as a very active role, to come to the “right” and “truthful” conclusion (as opposed to simply the most persuasive case). Therefore, the taking of evidence orally, is seen as a role of the judiciary. The judiciary being an instrument of the state therefore means that an English court could be stepping into the shoes of an element of sovereignty. Indeed, whether taking evidence from abroad infringes upon sovereignty thereby requiring permission from the destination state is arguably a matter of expert evidence, which can be disputed. See for example Interdigital Technology Corporation v Lenovo Group Limited [2021] EWHC 255 (Pat) where it was contested whether permission is required from a German court before evidence can be taken via video-link, from Germany. This resulted in the two sides instructing experts in German Law, HHJ Hacon assessing the evidence of said experts, and concluding that permission was in fact required.

Therefore, this area remains developing and remains complex. Readers are invited to continue to “watch this space”.

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.

Anonymity orders after PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126

The recent case of PMC v Cwm Taf Morgannwg University Health Board acts as a useful summary of the issues concerning withholding orders, reporting orders and anonymity orders, as well as the interaction between the jurisdictions of the family and criminal courts and the principles of open justice. This article aims to further summarise the key issues addressed in the judgment. 

This case is the successful appeal of Mr Justice Nicklin’s decision to refuse the anonymity order sought by the Claimant on the basis that there was no statutory basis for making a reporting restrictions order in the absence of a withholding order, and that an order should not be made as there was already material concerning the Claimant in the public domain.

The first key point the judgment makes is to distinguish between three key terms which are often used interchangeably:

1. Withholding order: This term refers to an order sought within court proceedings to withhold or anonymise the names of a party or witness, or information that could identify them.
2. Reporting restrictions order: This term refers to an order sought within court proceedings which restricts the reporting of material disclosed during those proceedings (whether in open court or by court documents).
3. Anonymity order: This term refers to an order sought within court proceedings which aims to both withhold/anonymise the names and/or identifiable details of the parties and restrict the reporting of material disclosed within open court or in court documents.

This judgment involves a careful examination of the line of authority concerning these orders, across legal jurisdictions, beginning with the base principles outlined in the early twentieth century case of Scott v Scott [1913] AC 417 that cases should be heard in public unless there was a “strict necessity” to hear them in private.  Consideration, as always in these cases, is given to the interplay between the Convention rights of Article 10 and Article 8 (the public interest espoused through freedom of expression and the individual’s right to privacy) and the principle of open justice. 

The judgment confirms the following principles:

1. When considering whether to make an order as outlined above, the starting point is a presumption in favour of the principle of open justice which should be given “substantial weight”, and only be displaced by “a sufficiently countervailing justification”.
2. Whilst section 11 of the Contempt of Court Act 1981 does make a withholding order a precondition of an order under that section, there is nothing in the statute that requires the withholding order to be in place from the start of proceedings.  The Court holds a common law power to make a Withholding Order considering the principles as above.
3. In personal injury claims, children and protected parties can make an application for an anonymity order “under the inherent jurisdiction of the court to protect the integrity of its proceedings in the interests of justice”.  It will not ordinarily be needed to invoke the equitable jurisdiction of the court or section 37 of the Senior Courts Act 1971.  In cases where s11 applies, it is possible to rely on that section in addition.
4. The fact that there has been previous reporting will not be an automatic bar to the making of either a withholding order or a reporting restrictions order, but it is an important factor that the court must take into account.
5. The guidance in X (A Child) v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96, which related to anonymity orders in the context of infant approval hearings, does apply more widely in relation to anonymity order applications made within personal injury claims by children and protected parties under the inherent common law jurisdiction of the court.
6. The interests of justice are not confined to reaching a just decisions on the issues in dispute between the parties, they are far more widely reaching than that, both in terms of their breadth and the fact that they stretch into the future. Anonymity orders can therefore be made in order to ensure that the interests of justice will not be infringed in future.
7. Consideration of anonymity does not only involve a balancing act of broad principles, it must also involve conducting a fact-specific examination and balancing the risks arising from the particular circumstances of the case, including risks to safety, health, commerce and reputation / humiliation. 

To conclude, this judgment is a must-read prior to the making of any anonymity order. It concerns useful information about the process of making such an application, the necessary considerations for drafters to ensure they address and the legal context and jurisdiction within which such orders are made.

About the Author

Megan Bithel-Vaughan gained tenancy having completed pupillage at Deka Chambers. She has already been led by Sarah Prager KC in a case of significant value involving complex issues around the interpretation of the Montreal Convention, and in particular the interplay between the operation of the partial compensation cap and contributory negligence.