PROCEDURAL AND EVIDENTIAL PROBLEMS WHEN REPRESENTING FOREIGN DEFENDANTS: WITNESSES COULD NOT GIVE EVIDENCE BY VIDEO LINK: AN INCORRECT TRANSLATION OF A REPORT HAD BEEN PROVIDED

The judgment of HHJ Howells in Evans v R&V Allgemeine Verischerung AG [2022] EWHC 2436 (QB) shows the difficulties that can occur when representing foreign defendants.   The defendant was not permitted to allow witnesses to give video evidence from abroad.   An incorrect copy of a translated expert’s report had been provided.

 

 

“On the morning of the second day it became apparent that the witnesses were not present and as such a formal application was made by counsel for the defendant to hear their evidence by video. It became clear as set out in my earlier judgment on this matter that the foreign office had indicated that they had a diplomatic objection to that; the German government had stated that they would not allow German nationals to give evidence by video in courts of foreign jurisdictions. As such the foreign office says (in an email that was read to me by counsel) that they too objected. Nevertheless, an application was made for me to ignore the diplomatic objection and hear such evidence. I refused that application.”

THE CASE

The claimant was injured in a road traffic accident in Germany.  He issued proceedings in England and the matter proceeded to trial. The defendant’s witnesses were all German.  However the one lay witness and one of the expert witnesses remained in Germany.  This only became evident on the first day of trial.   The judge refused the application to allow those witnesses to give evidence by video link.

THE PROCEDURAL ISSUES IN RELATION TO THE ABSENT WITNESSES

The judge found that the practice note had not been complied with. Both the German and UK government objected to video evidence being given from Germany.  The defendant pursued the application. It was not successful.

    1. It is worthy of note that this matter has had some procedural issues raised in the course of the trial. I mention them because, not only did they cause delay to the progress of the claim, but they also had an impact upon the evidence before the court.
    1. Firstly, there was an application from the defendant before me to allow additional video evidence prepared by the defendant’s accident reconstruction expert in the weeks leading up to trial but after the joint statement of experts. I refused this application. However, in the light of issues raised within it the defendant, on the morning of day two of the trial, made an application to amend their defence and to specifically plead that the speed of the claimant was excessive for the road conditions. For reasons given in the judgment on that application I allowed that amendment. As a result of that amendment the claimant’s own reconstruction expert was permitted to provide further evidence in written and oral form to specifically address the question of speed which had not been a highlight of his evidence beforehand.
  1. A further application was made by the defendant in relation to 2 of their witnesses namely Mr Günther the driver and the defendant’s German law expert Mr Tomson. On the first day of trial, I was told that neither of those witnesses (who are German citizens and residents) were present in the UK and the intention was they should give evidence by way of video link from Germany. In principle this was not objected to by the claimant, but it was said that the procedural requirements under Practice Direction 32 of the Civil Procedure Rules and specifically the practice note set out at page 1171 of the 2022 White Book needed to be complied with. The defendant reserved their position overnight particularly as I suggested that arrangements might be able to be made for those two German witnesses to fly into the United Kingdom so that they could give their evidence in the usual way before the court. On the morning of the second day it became apparent that the witnesses were not present and as such a formal application was made by counsel for the defendant to hear their evidence by video. It became clear as set out in my earlier judgment on this matter that the foreign office had indicated that they had a diplomatic objection to that; the German government had stated that they would not allow German nationals to give evidence by video in courts of foreign jurisdictions. As such the foreign office says (in an email that was read to me by counsel) that they too objected. Nevertheless, an application was made for me to ignore the diplomatic objection and hear such evidence. I refused that application. Nevertheless, it was agreed by all parties that Mr Günther’s evidence and the evidence of Mr Tomson could be admitted under the civil evidence act and the question then would be what weight ought to be given to it.

 

THE EXPERT EVIDENCE

One of the defendant’s experts was a reconstruction expert.  His report had been translated.  However the  translated copy available to the Court was not accepted as correct by the expert.  This was despite confirmation having been given by the defendant’s solicitors that the disclosed translation was the correct one.

    1. It is unfortunate that at this stage I need to mention how the defendant expert evidence of Dr Weyde was presented before the court. Dr Weyde is a German expert engineer who speaks English to a very high level. He did not seek the assistance of an interpreter to give oral evidence. His report had originally been written in German and then been translated and was certified as correct. However at the commencement of his oral evidence he was keen to make the point that he did not accept that the translation was wholly correct. Over the course of perhaps an hour he went through in significant detail some minor and some more significant amendments to the translated versions. He said that he had provided these corrections to his instructing solicitors. During a short adjournment it became apparent that there had been a discussion between the parties previously when the joint statement of the experts was being prepared and the defendant solicitors had confirmed that the certified translation was the correct one. How it came about therefore that Dr Weyde was seeking to amend or correct the certified translation remains unclear. The defendant’s solicitors had stood by the certified version. As such that is the one that I was bound to consider (it would not be fair on the claimant to do otherwise in circumstances where they had no opportunity to check that the translation was correct). I do not reflect upon this to conclude the Dr Weyde’s evidence is weakened by this unfortunate situation. I do however reflect that it was entirely unsatisfactory and caused delay in the conduct and progress of this trial.
  1. A further point that should be made in relation to Dr Weyde’s evidence is that he is certified as an expert within the German courts; it was explained by him that the approach there is a different one. Dr Weyde explained that in Germany he would be appointed as a single expert for the court (as opposed, as he said, as an expert for the defendant) and in effect his conclusions are likely to be determinative. He therefore made assumptions in favour of the claimant rather than the defendant in such circumstances. Whilst Dr Weyde’s approach in this case was of course as a CPR Part 35 expert I recognise in assessing his evidence, that his evidence did appear to be seeking to be determinative