Claimant seeking to give evidence in libel claim by video link from abroad to avoid possible arrest - no absolute rule as to whether permission to be given - court's general policy to discourage litigants from escaping normal processes of law rather than to facilitate it

Polanski v Cond Nast Publications Ltd: CA (Lords Justice Simon Brown, Jonathan Parker and Thomas): 11 November 2003

The claimant in a libel action had been convicted of a serious offence in the US, but had not been sentenced and had fled to France, where he now lived.

The judge made an order permitting him to give evidence by video conference link from a Paris hotel.

The defendant appealed.

Thomas Shields QC and Manuel Barca (instructed by Reynolds Chamberlain Porter) for the defendant; Ronald Thwaites QC and Heather Rogers (instructed by Schillings) for the claimant.

Held, giving reason for allowing the appeal, that there was no absolute rule as to the proper application of CPR part 32, which allowed for evidence to be given by video link, where a witness wished to give such evidence from abroad to avoid the risk of arrest; that the court should have regard to all the circumstances in deciding whether to permit video link evidence specifically to enable a witness to evade the ordinary processes of English criminal and extradition law by which he might lose his liberty; that the more obviously relevant considerations were the nature of the offence for which he risked arrest and whether he had already been convicted of it, the nature of the civil claim in which he sought to give such evidence and any relationship between the claim and the offence, the witness's role in proceedings (an order would more readily be made for a defendant or a witness who was not a party), the importance of the claim to the witness and the possibility of litigating elsewhere, and the likely disadvantage in the particular case of video link compared with live evidence; that the court's general policy should be to discourage litigants escaping the normal processes of the law rather than to facilitate it; that, accordingly, the judge's direction would be set aside; and that, if the claimant were to seek to put his statements as hearsay evidence and the defendant applied to call him for cross-examination on their contents, the court would be bound to allow such applications and, if the claimant were not to attend for such cross-examination the court would then be bound to exclude the statements from evidence.