Personal Injury Barrister Peter Quegan highlights the utility of taking online evidence from overseas in his latest legal blog.

Since the pandemic, it has become routine for evidence to be given online.

Whilst I was initially a sceptic, I have come to recognise the utility of online evidence. It minimises witness expenses as well as inconvenience, and as a consequence, I have yet to experience an online witness failing to attend court.

Indeed, I have cross-examined witnesses from their homes, holidays, and workplaces. On one occasion, I even cross-examined a witness who was in the passenger seat of a moving truck. However, we should never forget that even if providing evidence in their own home, a witness is still in court. 

I well remember a case in which a witness, giving evidence from his front room, was interrupted by his wife. The judge warned her that she had to remain silent. Nevertheless, a few minutes later, she interrupted again, at which point the judge told her to leave the room. Whilst she was never in view, she complained that she was not going to be told to leave her own front room, to which the judge responded, “Mrs Smith, if you do not leave the room, then I will hold you in contempt of court”. Needless to say, she left the room.

The ability of foreign nationals to give evidence remotely has been of value, not least with there being so many temporary workers in the UK, particularly HGV drivers.

Prior to the pandemic, it was routinely the case that trials would be adjourned for months to try and coordinate with the return to the UK of a foreign witness. 

In June this year, I appeared remotely in a liability trial arising from a road traffic accident. Apart from its being held remotely, the trial did not appear to have any exceptional characteristics. However, the claimant, a South African, had left the UK since his unfortunate accident and was thus giving evidence from outside the jurisdiction. 

It is this point that made such cases a little more complicated. I was aware of CPR 32.3, which states simply that ‘the court may allow a witness to give evidence by a video link’. I was also aware that there were restrictions on giving evidence from abroad without prior permission.

These seem to be rules more honoured in the breach than the observance and in this case, the Deputy District Judge rightly chose to make an issue of it, with the risk that the trial would be adjourned or the claim struck out for want of evidence. It is thus important that the rules are observed. As usual, the devil is in the detail, and both the White Book commentary to the rule and Practice Direction 32.33.4 highlight the need to consider the country from which the evidence is to be given. 

It is necessary to first obtain directions that evidence can be given online, either by requesting it on the Directions Questionnaire or by an application. In either case, you should be prepared to explain that you have considered both the conflict of laws issues and the practicalities, such as differing time zones etc. You should also consider the time it could take to obtain any necessary permission from the overseas jurisdiction.

Countries are distinguished between the 91 Hague Convention signatories and those that have not agreed. For countries that are not in the convention, you need to obtain advice from the ‘Taking of Evidence Team’ at the Foreign, Commonwealth and Development Office (email: TOE.Enquiries@fcdo.gov.uk), as online evidence may be the subject of a bilateral agreement.

The Hague Convention

The Hague Convention was written in 1970, before online testimony was conceived of, and it includes instruments for such diverse issues as child abduction, divorce, and wills. However, despite this, its protocols on the taking of evidence do apply to online video evidence.

The Hague Convention website provides guidance. If a country is a signatory, then evidence may be required to be obtained in one of two ways. Either by a letter of request, in which case the English authority, the Foreign Process Section of the Royal Courts of Justice, asks the foreign court’s central authorities to arrange video testimony in accordance with the overseas judicial procedures. Or, with the consent of the overseas authority, the evidence is arranged by a consul or commissioner.

However, some countries have great reservations about allowing their nationals to give evidence in other jurisdictions, and it cannot be assumed that these are just the usual suspects! You may be surprised that Germany takes a very restrictive view and considers the giving of evidence a matter of national sovereignty.  

To seek permission under the convention, it is necessary to send the Foreign Process Section:

·         A covering letter;

·        A sealed order from the court in which the proceedings are progressing, giving permission for evidence to be given by video link;

·         A certified translation;

·         A translated letter of request, and;

·         An undertaking for expenses on Form PF78. 

Conclusion

As with most procedural matters, this is best grasped at the earliest possible stage and not left until trial. Indeed, the guidance makes it clear that any party seeking to rely upon online evidence from overseas should be in a position to satisfy all of the requirements before filing the pre-trial checklist. 

If you have a Personal Injury case you need Peter Quegan for, call our Civil Clerks Michael Jones and Alessandro Saportia-Clark on 0161 832 4036, email Mike@kenworthys.co.uk, Alessandro@kenworthys.co.uk, or fill out our contact form.

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