Video Link Evidence in the Commercial Court: Potential Pitfalls

Introduction

In the 21st century commercial practitioners often approach the question of whether the court will hear evidence by video link as one of practicality. Questions they will commonly ask themselves include the following: will the witness be in London during the trial timetable? Will the witness be able to find time (and obtain consent from a current employer) to fly to London? Where physically could the video evidence be given and is that a suitable location? How sure can the court be that the witness is not receiving clandestine assistance “off-camera”? How secure is the video link and what is the sound and picture quality? Indeed in preparing a case that involves a number of witnesses who live and work overseas the possibility of live video evidence may well feature in trial preparation as a necessity rather than an option.

However, there are two very serious issues that require consideration because they may have the effect of derailing basic assumptions concerning evidence by video link and trial preparation.

The White Book Guidance

By way of reminder the two issues that will confront practitioners are found in Annex 3 paragraphs 2 and 4 to PD32 (White Book page 965) which includes this text:

Paragraph 2

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 that it can exercise over a witness physically before it.

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 by means of VCF. If there is any doubt about this, enquiries should be directed to the [FCO] with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at a diplomatic level. The party … responsible for arranging the VCF will be required to make all necessary enquiries about this well in advance of the VCF and must be able to inform the court what those enquiries were and of their outcome. 

Convenience versus control

Many judges and lawyers appear to accept video evidence as a fairly standard feature of litigation and deal with it on a practical level. However, recent experience in the Commercial Court suggests that, in a case where the testimony of a witness is important to the outcome, the court may be prepared to accept a submission from an opponent that permission for the video application should be withheld on a generic basis that the cross examining party should not be left with the disadvantage (as they see it) of the witness not being in court.

If you wish to seek permission for evidence to be given by video link from significant witnesses you should prudently be in possession of evidence to the effect that the witness will not and cannot be available in London during the relevant period. Moreover, reliance on the obvious convenience of the video link may be insufficient. Rather what is required may go as far as evidence from a current employer to certify that they will not permit the witness time off and/or that it is not reasonable to expect a witness to make, say, a tiring three day round trip from the Far East using their days off and holiday time for that purpose.

The diplomatic issues arising

Paragraph 4 of Annex 3 to the Practice Direction is directed to discovering whether there is “objection at diplomatic level” and tells practitioners that the Foreign and Commonwealth Office (“FCO”) can be contacted in cases of doubt.

Following detailed exchanges with the FCO it has been established that Japan will make a formal objection to the British Government at diplomatic level if the High Court in London hears evidence from a witness in Japan via a video link. This objection was sustained notwithstanding that: the dispute had nothing whatsoever to do with Japan; it was a dispute between claimants in England and two European-registered corporations concerning contracts made in England and governed by English law under the exclusive jurisdiction of the English court; and the witness involved was an Australian national who was visiting Japan for a few days on business during the relevant days of the trial and who was available to give evidence in the evening (Japanese time) by video link.

Case reports suggest that video evidence from witnesses in Japan has been received by the English High Court on at least three occasions in the last decade (but with the jurisdiction and diplomatic objection issue apparently not having been addressed).

Wider issues

The area is not without complication. Some foreign video link evidence will be covered by EC Council Regulation 1206/2001 while others may be covered by the Hague Convention of 18 March 1970 on Taking Evidence Abroad in Civil and Commercial Matters. There is no substitute for early and careful research with the FCO.

A practitioner who does not make these enquiries will not be able to satisfy the court that it has resolved that there are no issues under paragraph 4 of Annex 3 to PD32.

Arbitration

As an interesting aside in the light of the current competition between commercial courts and arbitral bodies for international dispute resolution business the objections referred to above do not appear to have any application to international commercial arbitration.