Parties seeking to rely on video-link evidence should plan ahead and, where necessary, obtain local and foreign court approval.

The COVID-19 pandemic has (albeit by necessity) ushered in a move towards remote justice. The vaccine rollout continues, and as lockdown restrictions begin to ease, English courts are now considering to what extent that move towards remote justice should continue. Most likely, remote hearings will continue in appropriate cases.

Against this background, the High Court has, in a number of recent decisions, provided some timely reminders for practitioners as to (i) proper arrangements for giving video-link evidence, and (ii) the need, in some cases, to obtain foreign court permission in respect of giving video-link evidence abroad.

Arrangements for Giving Video-Link Evidence

Video-link evidence is, of course, not new to the courts. As early as 2016, the Ministry of Justice considered “[t]omorrow’s justice system” and acknowledged that “more and more cases or parts of cases will be carried out virtually or online”.[1] Due to a growing awareness of the legal industry’s carbon footprint and efforts to reduce unnecessary travel,[2] as well as the efficiencies of conducting hearings remotely in appropriate cases, giving evidence by video-link is likely to remain commonplace.

Rule 32.3 of the Civil Procedure Rules provides that a court may allow a witness to give evidence by video-link. Annex 3 of Practice Direction 32 offers some guidance in this regard, acknowledging that video-conferencing, although “inevitably not as ideal as having the witness physically present in court”:

“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”.

However, as recent cases demonstrate, “the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it”,[3] and as a result practitioners must be aware of the need, in some cases, to involve the court in any proposed remote evidence arrangements.

The High Court has offered some useful practical guidance in this regard. In Langley v. GMB,[4] for example, the Court noted the need for maintaining the “formality, control, and integrity” of the proceedings, and approved the defendant’s witness giving evidence remotely in circumstances in which she: would be able to give her evidence undisturbed without any others present in the room; would have either a hard copy of the bundle or a second full-screen device with an electronic copy of the bundle available; and had sufficient broadband width and computer facilities to ensure a good connection.[5]

In Navigator Equities Ltd v. Deripaska,[6] which concerned a contempt of court application, the Court signalled the need, in some cases, for court approval of the parties’ arrangements. A remote hearing had been ordered, principally because the defendant, who was in Russia, could not travel to London due to COVID-19 restrictions.

At the hearing, one of the claimants’ solicitors gave evidence from a conference room in the claimants’ counsel’s chambers. Andrew Baker J expressed his surprise with respect to several features of this arrangement, observing that: the Court had not been notified or asked to approve the arrangement; the conference room set-up meant that the solicitor and the claimants’ counsel could not be seen on screen simultaneously; and no representative of the defendant was present, albeit by agreement between the parties.[7]

Andrew Baker J considered that this arrangement was not satisfactory, although there was nothing to suggest that anything inappropriate occurred or was likely to occur, stating that:[8]

• If a witness is to give evidence by video-link, the parties should discuss, in advance, the witness’ location and who (if anyone) will be with them and why, especially if the arrangement may be such that there could be interaction with the witness during the giving of their evidence that would not be visible to the court.
• Any arrangement other than that a witness will be on their own while giving evidence should be approved by the court and, if possible, in advance. Parties should not assume that an arrangement will be approved just because it has been agreed between them.

Andrew Baker J emphasised that it was for the court, and not the parties, to control how it receives witness evidence, although he noted that “[s]ensible arrangements” discussed and agreed in advance would likely be met with approval, provided that the court did not identify any difficulty of possible substance that the parties may have overlooked.[9]

Giving Video-Link Evidence Abroad

Further complications may arise when a witness gives evidence remotely from another jurisdiction. In Interdigital Technology Corporation v. Lenovo Group Ltd,[10] the High Court considered whether it should permit the claimants’ expert witness to give video-link evidence from Germany subject to approval from the competent authority in Germany.

The dispute concerned a patent relating to 4G telecommunication technology, and the trial was due to be heard remotely. The claimants’ expert witness was a British citizen living in Germany. The preferred plan was for the witness to travel to the UK to give his evidence by video-link. As a backup plan, in light of COVID-19 restrictions, the claimants proposed that the witness give his evidence by video-link from Germany.

Although the defendants did not object to the proposed arrangements in principle, they argued that German law regarded the taking of evidence to be a matter of sovereignty and required that a German court grant permission before a witness gives evidence by video-link from Germany in a trial held outside Germany.

The claimants contended that issues of sovereignty only arise if a person gives evidence under compulsion, whereas in this case, the expert was giving evidence on a voluntary basis.

Judge Hacon considered that the question of the content of German law was a factual question to be determined on the balance of probability.[11] However, the “overall question”, namely, whether to grant permission for the claimants’ expert witness to give evidence by video-link, involved an exercise of the Court’s discretion. In this regard, an “important factor” to be taken into account was whether there was a significant risk that such permission would lead to a breach of German law. As Judge Hacon emphasised, “[t]aking that risk would not be a trivial matter”.[12]

Judge Hacon found that there was sufficient support for the proposition that German courts regard the taking of video-link evidence from abroad as a matter of sovereignty and that the same principles would therefore likely apply to video-link evidence taken from Germany by a court outside Germany, notwithstanding the distinction between voluntary and compulsory evidence.[13]

More importantly, Judge Hacon found that there was a real risk of breaching German law if the Court were to give permission for evidence to be obtained by video-link from Germany without the permission of the German courts.[14] Accordingly, Judge Hacon granted permission for the evidence of the claimants’ expert witness to be given by video-link from Germany, provided that the competent authority in Germany first granted its permission.[15]

This case reinforces (although did not expressly consider) the caution contained in Annex 3 of Practice Direction 32 that 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 [video-conferencing]”.

Conclusion

Parties seeking to rely on evidence given by video-link must plan ahead. They should make appropriate arrangements, seek other parties’ consent and, where appropriate, obtain court approval. In particular, parties seeking to rely on evidence given by witnesses abroad should ensure that they obtain any necessary approvals from the relevant foreign court.

This blog post was prepared with the assistance of Alice Zhou in the London office of Latham & Watkins.

Endnotes

[1] Ministry of Justice, ‘Transforming Our Justice System’ (September 2016) 6 (see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/553261/joint-vision-statement.pdf).

[2] See e.g., the Campaign for Greener Arbitrations’ Green Protocols, which, inter alia, encourage the use of video-conferencing for the giving of witness and expert evidence, in order to reduce unnecessary travel (see https://www.greenerarbitrations.com/green-protocols/arbitral-proceedings).

[3] See e.g., Dr Jones Yeovil Ltd v. The Stepping Stone Group Ltd [2020] EWHC 2308 (TCC), in which, during a 10-minute mid-morning break, the defendant’s witness, who had left his microphone on, was overheard having a phone conversation with another of the defendant’s witnesses to “ask him how I was doing” and how he should proceed (see https://www.bailii.org/ew/cases/EWHC/TCC/2020/2308.html).

[4] [2020] EWHC 3619 (QB) (see https://www.bailii.org/ew/cases/EWHC/QB/2020/3619.html).

[5] Ibid [2], [4].

[6] [2020] EWHC 1798 (Comm) (see https://www.bailii.org/ew/cases/EWHC/Comm/2020/1798.html).

[7] Ibid [7]–[8].

[8] Ibid [9].

[9] Ibid.

[10] [2021] EWHC 255 (Pat).

[11] Ibid [34].

[12] Ibid.

[13] Ibid [38]–[45].

[14] Ibid [45].

[15] Ibid [47].