In this section we describe an interesting recent case we have been involved in, explaining the issues involved and how we handled it, highlighting points of legal and practical interest.
The improvement of video link technology and modernisation of court facilities means that a witness in a remote location can still give evidence at court. Evidence by video link (or video conferencing facilities (VCF) as the court terms it) can be an excellent way to manage costs and deal with the inherent problem of witnesses based abroad but before embracing this option it is important to carefully weigh up the pros and cons. VCF evidence takes place between the judge at the ‘local site’ and the witness at the ‘remote site’. If a video link is the best option then it is crucial to include this at an early stage of a client’s case preparation.
In a case we were involved in, which went to a five day trial in February 2017, we successfully organised video evidence to be given by witnesses based in India. In that case, the High Court was asked to decide whether a particular provision of our client’s (International Cotton Association) code of conduct for arbitrators, which restricted repeat and concurrent appointments, was void and unenforceable as an unreasonable restraint of trade. The case advanced by our client was supported by witness evidence from witnesses based in India who were unable to attend the trial in person. Ultimately, our client successfully defended the challenge to its code of conduct, the court finding that the doctrine of restraint of trade did not apply to the provision and, even if it did, the provision was both reasonable in scope and intended to further our client’s legitimate objectives. The video evidence was key to this successful result.
Weighing the pros and cons
In most cases it will be obvious at an early stage that there is a problem with a witness attending court to give live evidence. This may be due, for example, to work commitments or being permanently based abroad.
Rather than automatically using VCF it is important to pause and consider how the use of this option will impact on the overall litigation process and prospects. Based on our experience, issues which may need to be considered with a client are:
- saves time
- saves cost (witness transport/accommodation etc.)
- greater convenience
- witness cooperation improved, and
- it may secure evidence that would be otherwise unavailable
- performance of witnesses can be worse
- the evidence is important to the outcome of the cas
- technical problems on the day (time lag etc.)
- requires permission of the court
- setting up the links – video and both venues, IDSM links, supervising staff with the witness
- less overall control of the witness and
- poor infrastructure at the local site may increase costs
Once these issues are balanced against each other it may be that the cost and time of bringing a witness to court is considered to be a necessity or alternatively that VCF provides a good workable solution.
If VCF is the best option then it is a step that requires planning, preparation and a clear idea of how it will operate within the trial plan.
It is necessary to obtain permission of the court. This should be obtained well before trial (usually at the pretrial review (PTR)). Permission will be granted if VCF is appropriate and proportionate. Other factors relevant to permission are whether the witness is a party to the proceedings, is the reason real or fanciful and will prejudice be suffered by either party.
The question will be fact-sensitive to the nature of the evidence in each matter but the balance of inconvenience/cost as against prejudice to the parties will be considered by the judge.
It should also not be assumed the other side will consent to VCF, so early communication about this option is a good idea in order to confirm consent or identify the issues which will be argued at a hearing before the judge.
Identify a venue at the remote site at an early stage, including equipment, an IDSN link and a supervising person. For some countries it may be better to use a third party provider to arrange this. Most modern courts will have a court room with suitable equipment for use when needed but it will be necessary to ensure the correct court is allocated for the hearing. Moving the equipment to a different court partway through a trial can increase cost and impact on the trial timetable.
Experience suggests the performance of witnesses can be impaired when giving evidence via VCF. One way to combat this is to ensure the witness is familiar with the process, the equipment and how it will all work. It may even be worth instructing a witness familiarisation company to provide training for the witness via VCF ahead of trial, addressing matters such as speed of speaking/time delay and reducing physical movement.
It will normally not be feasible to send the whole trial bundle to the remote site, so it is important to discuss with the other side which documents will be needed. Usually this will be witness statements, pleadings and perhaps the core bundle, along with any specific documents identified as relevant to the witness’s evidence. Try to agree the fewest documents possible.
It is always possible a piece of evidence will be adduced prior to or during with VCF evidence so it is also important to ensure parties have the ability to electronically scan and send documents between the local and remote site.
It is necessary to factor in anytime zone differences into the trial timetable for evidence. This can lead to an unusual ordering of witnesses or even breaking off from one witness part-way through evidence to go to the VCF, but this is usually better than no evidence at all.
The equipment must be set up ahead of time and tested – at both ends. Witnesses should also be in place 20 minutes ahead of the start time.
Preparation is the key to ensure the VCF evidence works well but there can always be unforeseen issues so ensure technical assistance is available, at both the local and remote site, to deal with any problems that arise on the day.
One final issue which can often be under estimated is the need to consider whether there are any diplomatic issues at the local site. The CPR requires the arranging party to contact the Foreign and Commonwealth Office (legalisation office) to check whether there are any specific steps required by the local legal system. The party arranging the VCF will need to make these inquires well in advance because some jurisdictions require additional steps; for example additional permission or different oaths.
In any event it is always necessary to inform the judge that the inquiries have been made and what the outcome of the inquiries are (again normally at the PTR).
Whether or not video link evidence is necessary or even the best option should be considered at an early stage of a dispute. There is no substitute for lawyers with experience of arranging and preparing for video link evidence in order to ensure a client gets the best performance from both the witness and the technology. As can been seen from the bullet points and practical steps set out above, VCF evidence is an option which can be marshalled to the aid of clients but only with careful planning and preparation. Undoubtedly, in the recent case we were involved in, there was considerable time and costs savings for our client which is what all clients are extremely interested in.