PROVING THINGS 234: REMOTE EVIDENCE FROM OUTSIDE THE JURISDICTION: PARTY CALLING WITNESSES HITS A PROBLEM

The judgment of Deputy District Judge Batstone in  Amanda Seafood PTE Ltd v Sykes Seafood Ltd [2023] EW Misc 13 (CC) illustrates the care that needs to be taken when attempting to call a witness who is giving evidence remotely from a foreign jurisdiction.

“In any other case, you should not take evidence from a witness located in another jurisdiction (particularly if they are a national of that jurisdiction) unless the party seeking to call the witness satisfies you that the relevant country has given consent and that any relevant conditions (e.g. those imposed by Bulgaria and Hungary) have been satisfied. It is their problem, not yours!

THE CASE

The claimant claimed for delivery up of goods at a price of $295,000, alternatively damages.  The claim was referred to the Small Claims Track for a preliminary issue relating to title of the goods in question.  The claimant served two witness statements and wished to adduce evidence of those witnesses from Singapore and Vietnam.  The claimant’s difficulty was that it had not obtained consent from the relevant jurisdictions. The witnesses, therefore, could not give evidence.

THE JUDGMENT ON THIS ISSUE

1. 1. C wished to adduce evidence from its two witnesses, the chairman Paul Andriesz and the managing director David Gorman, by video link from locations in Singapore and Vietnam, respectively. By email of 8 September 2023 C’s solicitors informed the court that the parties were agreed, subject to the court’s approval, that the two witnesses could give evidence remotely. On 12 September 2023 District Judge Brown gave permission for a hybrid hearing with the witnesses attending remotely and the advocates in person but she did not deal with the question whether those two countries had given permission and noted on the file that the issue was to be decided by the trial judge.

1. 1. At the start of the hearing, I raised this with Counsel for the parties, James Pearce-Smith for C and Edward Bennion-Pedley for D. I read to them guidance issued to judges by His Honour Judge Philip Glen, the Designated Civil Judge for Hampshire, Wiltshire and the Isle of Wight, after reference to there being no difficulty about taking evidence from a witness in a list of countries, not including Singapore or Vietnam, although I was told it was the latter country where the witnesses were located:

In any other case, you should not take evidence from a witness located in another jurisdiction (particularly if they are a national of that jurisdiction) unless the party seeking to call the witness satisfies you that the relevant country has given consent and that any relevant conditions (e.g. those imposed by Bulgaria and Hungary) have been satisfied. It is their problem, not yours!

1. 1. After a short adjournment for instructions to be taken it appeared that the problem had not been solved. I was told that it was not going to be possible for the requisite consents to be obtained in time and Counsel were not able to persuade me that I should proceed nevertheless to take the evidence from the two witnesses. After I allowed a further short adjournment for Counsel to pursue settlement discussions the situation was reached in which the case had not settled and the problem about the overseas witnesses remained. Mr Pearce-Smith invited me to adjourn to allow his witnesses to give evidence or alternatively he invited me to proceed on the basis that he would tender the witness statements as hearsay evidence, noting that CPR rules 31 and 32 do not apply to small claims; that the evidence of D’s witness, Jay Adams, would be dealt with in the usual way; and then there would be submissions. Mr Bennion-Pedley invited me to adjourn. In paragraph 5 of his skeleton argument, he had referred to the parties having served limited witness evidence in the statements of Mr Andriez and Mr Adams, but, he said, no live evidence is required. However, at the start of the hearing he told me that having seen the skeleton argument of Mr Pearce-Smith, he did now wish to cross-examine C’s witnesses. He submitted that C relied on a course of dealings to plug the gaps in what he said were the holes produced by the informal relationship between C and BPC. Mr Bennion-Pedley submitted that he had come to court prepared to deal with this in cross-examination of C’s witnesses and his questions would be relevant to the delivery argument and to the question why C released the shipping documents for the Goods which were in effect, Counsel submitted, documents of title. Mr Bennion-Pedley recognized that D could have dealt with the point about consent to C’s witnesses giving evidence from overseas and it was regrettable that this did not happen. Nevertheless, he submitted that I should adjourn the hearing. It seemed to me clear that the overriding objective would not be furthered by acceding to D’s request with the consequence that a full day of court time would be lost when the inability to cross-examine C’s witnesses at the hearing before me was entirely the responsibility of the parties in not making the necessary arrangements. After giving a short judgment I refused D’s request for an adjournment and at the end of the hearing I acceded to Mr Bennion-Pedley’s request for an extension of the time for appealing that decision to 21 days after the handing down of this judgment.

1. Mr Pearce-Smith tendered the witness statements of Mr Andriesz and Mr Gorman, dated 20 July 2023 and 21 July 2023 respectively and both signed beneath a statement of truth in the required form.