“It is their problem, not yours!”

Guidance to judges on parties seeking to adduce remote evidence from overseas issued by the Designated Civil Judge for Hampshire, Wiltshire and the Isle of Wight, quoted in Amanda Seafood PTE Ltd v Sykes Seafood Ltd [2023] EW Misc 13 (CC)

Although Sir Julian Flaux issued his Practice Note on Witnesses Giving Evidence Remotely back in May 2021, the rules for overseas witnesses are still catching out unsuspecting litigants, sometimes with devastating consequences for their cases.

So, this blog post by James Pickering is a reminder of the key principles for overseas witnesses giving remote evidence voluntarily. Other situations are governed by the Letters of Request procedure (which is helpfully outlined in the King’s Bench Division Guide 2023 at Section 20).

All witnesses, including witnesses based abroad, may give evidence via video link: see CPR r.32.3.

However, the default position is that proceedings should take place live in court unless there are good reasons to the contrary. CPR 32PD Annex 3 at paragraph 2 observes that, while video evidence can yield savings of time and costs (particularly in cases involving overseas witnesses), it is inevitably not as ideal as having the witnesses physically present in court.

Convenience is not the only or primary consideration, meaning that it will usually be necessary for a party to justify the need for a witness to give evidence remotely rather than in person.

A valid example would be a witness who is ill and unable to fly as a result: Horlick & Ors v Cavaco & Ors [2022] EWHC 2935 (KB). But if it is being said that the relevant witness refuses to travel to the UK or will face insurmountable difficulties if required to do so, then this must be clearly evidenced: Jackson v Hayes & Jarvis (Travel) Ltd [2022] EWHC 453 (QB) at [22]. A judge will usually not take such assertions at face value.

The location and any possible accompaniment of the witness giving evidence remotely needs to be discussed by the parties in advance of the hearing: Navigator Equities v Deripaska [2020] EWHC 1798 (Comm) at [9]; GKE v Gunning [2023] EWHC 332 (KB) at [85]. Permission for witnesses to give evidence from overseas may be conditional on, for example, a solicitor being present at all times in the room with a 360-degree camera which enables the court to view the whole room: Jaber v Al Ibrahim [2023] EWHC 719 (Comm) at [14].

The big complication that arises in cases involving overseas witnesses is flagged by CPR 32PD Annex 3 at paragraph 4: “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 .”

Or, as the Court of Appeal put it in R v Kadir [2022] EWCA Crim 1244 at [33]:

“In relation to an application for a live link for a witness who is in another country, it is necessary also to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state.”

If there is any doubt (or perhaps just to make sure), then the party responsible for arranging the video conferencing should email the Foreign, Commonwealth and Development Office (Public Facing Services, Taking of Evidence Team) at TOE.Enquiries@fcdo.gov.uk “with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level.”

(Our experienced cross-border readers will no doubt have spotted that the email address has changed since the guidance was first issued.)

It is worth noting that, for signatories to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, there is a helpful list on the Convention website of state responses setting out the position in respect of various matters, including overseas video evidence.

And the position for many other countries is outlined in the UK Government’s Guidance website on taking and giving evidence by video link from abroad.

By when does this all have to be sorted? According to CPR 32PD Annex 3 at paragraph 4, the party arranging the video conferencing “will be required to make all necessary inquiries about this well in advance of the and must be able to inform the court what those inquiries were and of their outcome.”

Sir Julian Flaux’s Practice Note is more specific: in cases with a Pre-Trial Review, any relevant permission should have been obtained by the date of the Pre-Trial Review; in other cases, permission should have been obtained by the time of filing of the Pre-Trial Checklist (and there should be a record of this in the Checklist itself).

The consequences of a failure to obtain permission where this is required are quite dire: it will usually result in the witness being barred from giving oral evidence at the trial. However, all is not necessarily lost; where permission cannot be obtained in time, then it may still be possible to rely on a witness’ statement as hearsay evidence: Evans v R&V Allgemeine Verischerung AG [2022] EWHC 2436 (QB) at [5].

Spencer Turner Cross-Border ,

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