In this case, the High Court rejected the defendant's application for its expert and factual witnesses, who were both based in Kenya, to give evidence via video link, or for there to be a hybrid trial which the witnesses could attend remotely.
The court made it clear that convenience is not the only (or indeed primary) factor to be considered when deciding how evidence should be given, and that just because we have all become familiar with remote hearings and testimony via video link during the pandemic, the default and ideal position remains that witnesses should give evidence in person.
The decision contains some important hints and tips for practitioners when applying for evidence to be given remotely.
The claimant sought damages for personal injury following an accident that occurred whilst she was on holiday in Kenya. The defendant is a UK-based tour operator that organised the claimant's holiday accommodation.
The court directed that a trial on liability should be listed before a judge sitting in the RCJ.
The defendant applied for its expert and factual witnesses to give their evidence remotely via video link under CPR r.32.3, or alternatively for the court to use its case management discretion to hold a hybrid hearing of the liability trial with those based overseas attending by video link and those based in the UK attending in person. In support of its application, the defendant pointed to possible Covid restrictions / delays on the witnesses' entry into the UK and re-entry into Kenya, the bureaucracy involved in obtaining visas, the time the witnesses would have to spend away from work and family in travelling to the UK to attend the trial in person, and the ongoing risk of contracting Covid whilst travelling.
The judge rejected the defendant's application. She noted that, although all those involved in litigation had become familiar with remote and hybrid hearings and witnesses giving evidence via video link during the pandemic, that was borne of the difficulty in proceeding with trials at a time when there were very serious public health concerns relating to in-person hearings. The default position remained that hearings should take place in person in court unless there were good reasons to the contrary. The "convenience" of witnesses giving evidence via video link should not dictate the use of that technology, as the ideal is having those witnesses in court in person.
The judge did not underestimate the potential difficulties that the defendant might face in ensuring its witnesses attended the trial in person. She made it clear that, if convenience were the only, or even the primary, consideration, there would have been good grounds for her to direct that evidence should be given remotely.
However, she noted that the risks the defendant had identified with its witnesses attending in person were only potential risks: there was no evidence before her that the witnesses would in fact face insurmountable difficulties in attending before a judge in the UK, or that the trial would be jeopardised if the witnesses were required to attend in person.
The judge also noted that this was a claim for substantial damages that was of particular value to the claimant, and that the evidence of the witnesses in question would be significant in determining the dispute. It would be easier for both counsel asking questions and for the trial judge if their evidence was given in person, particularly when referring to photographs and plans (which seemed likely in this case).
This case is a useful reminder that the court will not simply wave through requests for remote or hybrid hearings because they are convenient. Instead, each one will be considered on its own particular facts and the court must carry out a balancing exercise. The following may help in tipping the balance in an applicant's favour:
- Make the application in good time. The judge in Jackson was unhappy that the defendant appeared to have assumed that the application would be agreed by the claimant, and had only made the application when the claimant indicated her opposition, at a very late stage, and did not have time to fully investigate the position and prepare proper evidence.
- Set out the actual (not just potential) risks of in-person attendance and evidence them fully. The judge in Jackson noted that if the defendant had presented evidence of insurmountable difficulties, she would have reached a different decision.
- Provide detailed information about where and how the witnesses would give evidence remotely, so as to assure the court of the safeguards that would be in place to manage that evidence. The judge in Jackson noted that no such information was provided as part of the defendant's application.
- Where witnesses are likely to refer to plans and photographs in their oral evidence, the court may be less likely to grant permission for video-link evidence.
Read the full judgment: Jackson v Hayes & Jarvis (Travel) Ltd  EWHC 453 (QB)