A WITNESS GIVING EVIDENCE WHILST DRIVING A CAR: THEN FROM A CROWDED OFFICE AND THEN WITHOUT MOST OF THE DOCUMENTS AVAILABLE: THIS DOES NOT END WELL
There are passages in the judgment of Recorder Douglas Campbell QC in ASR Interiors Ltd v AWS Trading Ltd & Anor [2022] EWHC 372 (IPEC) which demonstrate a remarkably “relaxed” attitude to giving evidence in court by one of the witnesses. It highlights the importance of emphasising to a witness that, if evidence is to be given remotely, the witness must be fully prepared, stationary and have all relevant documentation to hand.
“The first time contact was made with Mr Singh, he appeared to be driving a van while dividing his attention between the road in front of him and the camera of a mobile device placed on the passenger seat”
“Anyone who seeks, and obtains, an order permitting evidence to be given by video link would be well advised to think carefully about how the process of giving evidence will actually happen. At a bare minimum, when the time comes for the video link to be activated the witness should be in a room with all the case papers before him or her and with no distractions. Otherwise the risk is that the evidence which the party seeks to adduce from that witness will not be given properly, or at all, with potentially adverse consequences for that party’s case.”
THE CASE
The claimant was bringing an action for infringement of registered designs. The trial was against one defendant only (the action having been adjourned against the other defendant). One of the witnesses was given permission to give evidence by video link. .
THE WITNESS GIVING EVIDENCE WHILST DRIVING A CAR
The judge noted that one witness had attempted to give evidence whilst driving a car. The situation was not remedied when the hearing was stopped and the witness evidence gave evidence from elsewhere.
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Mr Singh’s evidence was 5 paragraphs long and was directed toward showing that Express Living had placed an order for items described as 6 “Rose chair/Mink” and 1 “Roma Sideboard” in or around 7th December 2018. He exhibited the delivery note for this item but this note did not show what the products actually looked like.
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Upon the First Defendant’s application, I permitted Mr Singh to give evidence via video link. The first time contact was made with Mr Singh, he appeared to be driving a van while dividing his attention between the road in front of him and the camera of a mobile device placed on the passenger seat. I immediately stopped the hearing. I then directed the First Defendant to re-establish contact once Mr Singh had stopped driving. The second time contact was made, Mr Singh appeared to be in a busy office with distracting amounts of background noise. I asked him if he could find a quieter place, which he did. This appeared to be a store room in the same building. However after being sworn it turned out that he had left his witness statement in the busy office. Hence he left the video link running while he went back to the busy office, then returned to the store room with it. He was then asked about his exhibit to his witness statement, but he did not have that exhibit with him nor did he appear to know where it was. Similarly he did not seem to know about a brochure to which he had referred in his statement. At this point Mr Roughton wisely accepted that the process was not turning out to be a successful one, and indicated that he would simply rely on Mr Singh’s statement for such weight as it might be thought to be worth. This was again realistic. In those circumstances I give Mr Singh’s statement no weight.
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I mention this not in order to determine who, if anyone, was at fault in relation to the way in which this happened. It may have been a combination of things. I do so because giving evidence by video link may be with us for some time to come, and this story illustrates the problems that can arise when things go wrong. Anyone who seeks, and obtains, an order permitting evidence to be given by video link would be well advised to think carefully about how the process of giving evidence will actually happen. At a bare minimum, when the time comes for the video link to be activated the witness should be in a room with all the case papers before him or her and with no distractions. Otherwise the risk is that the evidence which the party seeks to adduce from that witness will not be given properly, or at all, with potentially adverse consequences for that party’s case.
