Star of the big screen denied the indulgence of the small

Roman Polanski v The Cond Nast Publications Ltd (Court of Appeal, 11 November 2003)

The celebrated film director Roman Polanski, who is suing Cond Nast as publisher of Vanity Fair, has suffered a considerable blow to his libel action.

He has been denied permission by the Court of Appeal to give evidence from France, where he is now resident, to the UK court by way of video conference link.

Mr Polanski brought libel proceedings over the publication of a July 2002 article in Vanity Fair.

The article had alleged that in 1969, on the way back from London to Los Angeles for the funeral of his wife Sharon Tate, who had been murdered by Charles Manson, he had sought to seduce a young woman in the famous Manhattan bar, Elaine's.

It was alleged that he concluded his seduction with the promise, 'And I will make another Sharon Tate out of you' - possibly not the best chat-up line given the unfortunate fate of the late Ms Tate.

The director denies this categorically and argues that the article depicts him as showing a callous indifference to the fate of his murdered wife.

However, the defendant, while now stating that the incident took place not on the way to but perhaps some few weeks after the burial, continues to assert that it did occur.

The publishers argue that the claimant did indeed show a 'callous indifference' to his wife's memory.

The libel case would be likely to turn both on the facts and the credibility of the parties in describing the alleged events at the bar.

This would be assessed by a jury giving consideration to the evidence of the parties and witnesses, in their statements and in cross-examination.

But Mr Polanski had reason not to attend at court in the normal way.

In 1977, he had pleaded guilty in the US to having sex with a 13-year-old girl.

However, while out on bail, he fled the country to France before sentencing.

As a French citizen, he cannot be extradited back to the US from France, although he could be extradited from the UK.

A short hop across the channel for a quick libel action could end in a slightly longer transatlantic flight and an inhospitable 'welcome' committee on the other side of the pond.

Giving evidence via video link from France, despite the potential downside of not being able personally to engage with the jury in at the Royal Courts of Justice, must have seemed a more attractive proposition.

At first instance, despite finding it 'unattractive' to grant such an indulgence to a 'fugitive from justice', Mr Justice Eady ruled that he would exercise the discretion given to the court by CPR 32 to allow evidence to be given in this way.

He considered that the order would be more disadvantageous to the claimant himself than to the defendant, and that it was preferable for the evidence to be given by video link than simply in the form of a witness statement.

The defendant appealed, and that appeal was successful.

While considering that, as a general principle, video link was an effective method of giving evidence, the Court of Appeal also considered it to be an indulgence and one which required sufficient reason for it to be granted.

And it did not accept Mr Justice Eady's assumption that if the evidence were not given by video link, it could be adduced in a witness statement.

While the Civil Evidence Act 1995 provides that hearsay evidence cannot be excluded, the opposing party is at liberty to demand a cross-examination on the evidence, which would require the presence of the maker of the statement containing the evidence.

If that person does not attend court having been so ordered, the statement will be inadmissible.

Accordingly, it was not a case that if a video link were not allowed, the statement would be adduced in writing, but in fact it was a case of no video link, no evidence at all.

So, even though its judgment would mean that the claimant could not bring his own evidence in support of the claim, the court granted the appeal.

It did not consider this to be a breach of Mr Polanski's right to a fair trial under article 6 of the European Convention on Human Rights.

He was not being 'shut out from access to justice', according to Lord Justice Thomas, but 'it is entirely his decision as to whether he comes to London to give evidence in support of his claim'.

This differentiated the matter from the previous case of Rowland v Bock, in which the party seeking the video conference order had not been found guilty of any offence, had no choice of jurisdiction and his claim had no connection with any potential reasons for arrest in the UK.

Mr Polanski, on the other hand, was a claimant choosing to litigate in the UK.

According to Lord Justice Simon Brown the action was 'one which could more appropriately have been brought in the US, where the principal publication took place, or in France, where the respondent lives.

He is invoking the court's jurisdiction for his own benefit, not defending a claim brought against him.

He should not be permitted to litigate on special terms'.

Furthermore, he had pleaded guilty to a criminal offence and the offence was in a sector of his life relevant to the libel claim.

In summary, Lord Justice Parker ruled that 'the court should not be seen to assist a claimant who is a fugitive from justice to evade sentence for a crime of which he has been convicted'.

That leaves Mr Polanski with the option of a quick trip to the UK with the risk of a much longer stay in the US, or bringing a novel libel claim with the potential of neither he nor his evidence being seen or heard.

There is another option.

That the House of Lords could overturn the Court of Appeal's ruling; and indeed Mr Polanski is seeking leave of the Lords to appeal.

Accordingly, the date of the trial, fixed for this month, has had to be put back.

London firms Reynolds Porter Chamberlain and Schillings are acting in the matter - the former for Cond Nast, and the latter for Mr Polanski.

Additional research by Helen Morris, paralegal at DPSA

By Amber Melville-Brown, David Price Solicitors and Advocates, London