COURT REFUSES DEFENDANT’S APPLICATION THAT DEFENDANT’S KENYAN WITNESSES SHOULD APPEAR BY VIDEO LINK:

In  Jackson v Hayes & Jarvis (Travel) Ltd [2022] EWHC 453 (QB) Mrs Justice Eady refused the defendant’s application that its witnesses give evidence by video link from Kenya.

“I am left with, on the one hand, an absence of evidence to support the concerns expressed by the defendant, and, on the other, a final liability trial in a case of some significance and of some value where it seems that the court would be better served by being able to assess the evidence of the witnesses concerned in person. For all those reasons, at this stage and on that basis, I refuse the application.”

THE CASE

The claimant brings an action for personal injury having been seriously injured whilst at a resort in Kenya.  She is now paraplegic. The claim is put at £5 million. The defendant is a UK based travel agent.

THE APPLICATION

The defendant intends to call evidence from a manager at the resort and an expert. Both live and work in Kenya.  The defendant applied for an order that both witnesses give their evidence remotely from Kenya, rather than travel in person.

THE JUDGMENT ON THIS ISSUE

The judge considered the arguments from both sides. She determined that the evidence from the defendant was not sufficient to displace the presumption that the witnesses should attend personally.

 

Discussion and Conclusions
    1. By CPR 32.3 it is provided that:
“The court may allow a witness to give evidence through a video link or by other means”.
It is a provision consistent with CPR 1.4(2)(k) which states that, in furthering the overriding objective, the court may make use of appropriate technology.
    1. Guidance is then provided at Annexe 3 to CPD 32, where the observation is made that, although the giving of evidence by witnesses by video can yield savings in time and costs, inevitably it is not as ideal as having the witnesses physically present in court: the “convenience” of evidence by video link should not dictate its use. Moreover, it is noted that a judgement is required in every case as to whether the use of technology such as video conferencing is likely to be beneficial to the efficient, fair and economic disposal of the litigation, in particular given that the degree of control a court can exercise over a witness at the remote site may be more limited than if that witness was physically before it.
    1. Since March 2020, all those involved in litigation in this country have acquired a ready familiarity with remote hearings, hybrid hearings, and with the giving of witness testimony by video link. That, however, has reflected the difficulty in proceeding with trials at a time when there have been very serious, public health concerns relating to the conduct of in-person trials; adjourning trials pending the resolution of the coronavirus pandemic would inevitably have led to delays that could have jeopardised the court’s ability to do justice. The default position remains, however, that hearings should take place in court unless there are good reasons to the contrary (see the observations of HHJ Pelling QC in United Technology Holdings Ltd v Chaffe [2022] 1 WLUK 240).
    1. The parties have drawn my attention to various cases in which the courts have permitted evidence to be given by video link, in particular during the course of the coronavirus pandemic. In each of those cases, however, that has either been an agreed course or the judgments provided have indicated the reason why it was necessary or appropriate to permit evidence to be given by that means, rather than in person, in those particular circumstances. Inevitably, the decision in each instance will be fact and case specific.
    1. In the present case, the application I have to consider makes a number of points as to the potential difficulties that might face the defendant in ensuring its witnesses attend the trial in person. I  do not underestimate those potential difficulties and, if convenience were the only (or, indeed, even the primary) consideration, then I accept there would be a very good basis for directing that that evidence be given remotely. I also accept that there are potential risks in requiring the witnesses to attend in person in the light of the continuing health risks posed by the coronavirus; all international travel presents potential risks at present, even though the steps that have been taken under the vaccine programmes in different countries may have mitigated those risks to a large extent.
    1. All that said, the risks identified are but potential risks. No evidence has been presented that persuades me that I should proceed on the assumption that they will be realised. Mr Thomas assumes that the witness of fact may be reluctant to attend in person, but that question does not appear to have been investigated with Mr Mbendi. Certainly, there is no evidence before me that either witness has refused to attend the trial in person or will face insurmountable difficulties in attending before a judge at the Royal Courts of Justice in London for this trial. If there were evidence to that effect, then I can see the balance may well tip in favour of the defendant’s application. It seems, however, that the application has arisen because there may have been an assumption that the suggestion that the witnesses give evidence remotely would simply be agreed and that the court would have no difficulty with that course; faced with a disagreement in this respect, and having then to make the necessary application, it appears that the defendant has not fully investigated the position as yet. On the material before me, the application is premature.
    1. Moreover, when I consider the other side of the balance, I am bound to take into account that this is a case of significance to both sides, but (inevitably) in particular to the claimant. It is a case of high value and the two witnesses to which this application relates are obviously important and their evidence will be significant in the determination of the dispute between the parties.
    1. Thus, this is to be the final hearing on liability in a case of significance and involving substantial damages. There is no immediate or direct evidence to suggest that the trial will be jeopardised if the witnesses are required to attend in person. The witnesses’ evidence will – to the extent I can form a judgement on this question at this stage – be more easily given in person, in particular when (as seems likely) referring to photographs and plans. Whilst I do not suggest that the witnesses in question could not fairly give that evidence (or that the court could not justly assess that evidence) if the testimony was given by video link, it will certainly be easier both for counsel asking questions, and for the judge who has to weigh the evidence and determine this case, if it is given in person.
    1. For completeness, I also observe that I have been [not been?] provided with any information about the steps that it is envisaged would be put in place as to where and how the witnesses will be giving evidence in Kenya, so as to assure the court of the safeguards that would be in place to manage that evidence; in this regard, I note the observations of the President of the Queen’s Bench Division in the case of Gubarev & Anor v Orbis Business Intelligence Ltd [2020] EWHC 2167.
  1. Ultimately, this application requires the court to carry out a balancing exercise. Doing so in this instance, and at this stage, I am left with, on the one hand, an absence of evidence to support the concerns expressed by the defendant, and, on the other, a final liability trial in a case of some significance and of some value where it seems that the court would be better served by being able to assess the evidence of the witnesses concerned in person. For all those reasons, at this stage and on that basis, I refuse the application.