Whether the court has the power to order a foreign witness to attend court

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A statement from a foreign witness that is hearsay can be admitted and read at court by means of a hearsay notice. If one party puts in hearsay evidence of a statement then, with the court's permission, the other party can call the maker of the statement and can cross-examine him. The situation is less clear, though, where the foreign witness refuses to attend court for cross-examination. Ordinarily the evidence of a witness not attending for cross examination at a hearing other than a trial cannot be used without the consent of the court but in the House of Lords decision of Polanski v Conde Nast Publications Ltd [2005] it was held that the failure of a witness to attend for cross examination did not make the statement inadmissible.

The issue in this case, though, was whether the court has the power to order the foreign witness to attend. The witness in question is both the defendant and a member of the Saudi royal family and he produced a statement from the Saudi Arabian embassy to the effect that he was not allowed to give oral evidence in foreign court proceedings. The judge did not accept that it was contrary to Saudi law for the witness in this case to attend. He further held that he had jurisdiction under CPR r33.4 (which provides that, where a party (a) proposes to rely on hearsay evidence; and (b) does not propose to call the person who made the original statement to give oral evidence, the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement) (and also had power under CPR r32.1 (which gives the court power to control evidence) and CPR r3 (the court's general case management powers)) to order the attendance of the witness.

Furthermore, he held that he should make such an order in this case because "the primary way of proving a case is by oral testimony" and it is essential that the judge, as far as possible, has the best evidence available to decide the case. Here, the defendant's evidence about an oral discussion with the claimant was described as the linchpin to the case. The judge further held that the order should have a penal notice attached to it and that, if the witness were proven to be in contempt, an arrest warrant might be issued.

COMMENT: Unlike the situation in Polanski, the issue in this case was not the admissibility of evidence but whether the witness could be compelled to attend. It is a surprising decision, given that the court has no power ordinarily to summons a foreign witness. However, the judge may have been influenced by the fact that this did not involve the evidence of just a witness but, rather, that of the defendant, and so perhaps his approach was harsher for that reason.