COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Eady)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE THOMAS
|- and -
|THE CONDΙ NAST PUBLICATIONS
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Reynolds Porter Chamberlain) for the Appellants
R Thwaites Esq, QC & Ms H Rogers
(instructed by Messrs Schillings) for the Respondent
Crown Copyright ©
Lord Justice Simon Brown
"The court may allow a witness to give evidence through a video link or by other means".
The libel action
"'The thing about Elaine's' says Lewis Lapham, 'is that nobody will allow himself to be impressed by anybody. You could say, 'I just sold 17,000 copies of my book today' and they'd ask what you did yesterday. The only time I ever saw people gasp in Elaine's was when Roman Polanski walked in just after his wife Sharon Tate had been murdered by the Manson clan. I was sitting at a table with a friend of mine who had brought the most gorgeous Swedish girl you ever laid eyes on. I don't think I've ever seen a more beautiful woman. Polanski came over and asked to join us. It turned out that Polanski had been in London when the atrocity took place and he was on the way back to Hollywood for the burial. The Swedish beauty was sitting next to me. Polanski pulled up a chair and inserted himself between us, immediately focusing his attention on the beauty, inundating her with his Polish charm. Fascinated by his performance, I watched as he slid his hand inside her thigh and began a long honeyed spiel which ended with the promise 'I will make another Sharon Tate of you.'"
"(1) Whilst on his way back from London to Los Angeles to attend the burial of his wife, Sharon Tate, who had just been viciously murdered, the Claimant had stopped off in New York and, in the course of a visit to Elaine's restaurant, publicly and shamelessly seduced the female companion of one of the other customers.
(2) In the course of this seduction and as an inducement for her sexual favours, the Claimant had promised to make the girl famous with the words: 'And I will make another Sharon Tate out of you.'
(3) The Claimant by his said conduct had shown such appalling and callous indifference to the fate of his murdered wife that even the hardened regulars of Elaine's had gasped in astonishment."
"Even though his wife had just been viciously murdered, the Claimant had shown a callous indifference to her memory by shamelessly exploiting her name, and the prospect of emulating her fame, in order to make sexual advances on another man's female companion who he had only just met in a restaurant."
"(i) The claimant pleaded guilty to sexual intercourse with a 13-year old girl in 1977 at a time when he was 43 years old.
(ii) He has never been sentenced for that offence and has stayed out of the United States since 1 February 1978, rather than face a term of imprisonment.
(iii) Before his first wife Sharon Tate's death, the claimant on his own admission in the autobiography regularly committed adultery on a casual basis because he had what might be described as an 'open marriage' and he drew a distinction in his own mind and in his own words between sex and love.
(iv) Within three or four weeks of her death, he resumed his casual sexual activities (including, apparently, having intercourse towards the end of August or beginning of September with two air hostesses).
(v) He was quoted in the Mail on Sunday in a lengthy feature article as admitting that his reputation had never been his strongest asset."
i) Having fled the United States, the respondent passed through London on 1 February 1978 en route to France where he has lived ever since. He has never returned either to England or to the United States.
ii) The respondent has dual Polish and French nationality. As a French citizen he cannot be extradited to the United States of America.
iii) Vanity Fair is an American magazine edited and published in New York and with a substantially larger circulation in the United States than in England. It is also published in France.
The judgment below
"In my judgment full access to the court for justice in a civil matter should not, save in exceptional circumstances, be at a price of the litigant losing his liberty and facing criminal proceedings."
I shall return later to that authority.
"As a matter of principle, it is an affront to the administration of justice in its broadest sense, and tantamount to an abuse of process, if a convicted criminal can litigate his reputation in this jurisdiction while exploiting the court's procedures to evade the judicial consequences of his own criminal conduct."
Putting in the respondent's written statements
"Access to justice could to some extent be assured by the witness giving his evidence through a witness statement, but that would be a disadvantage, it seems to me, to both sides."
"1(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
3 Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first mentioned party and as if the hearsay statement were his evidence in chief."
"(1) The court may control the evidence by giving directions as to:
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible."
"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 the party to call the maker of the statement to be cross-examined on the contents of the statement."
"(1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.
(2) If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission."
Evidence by VCF contrasted with live evidence in court
"VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether it's use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it."
Rowland -v- Bock  4 All ER 370
"Plainly whatever difference there may be between video link evidence and live evidence in court, the parties will be on a more equal footing than one party being present and cross-examined and the evidence of the other being confined to the reading of a statement pursuant to a Civil Evidence Act Notice."
i) Mr Norgren had not been convicted of any offence. He was entitled to be presumed innocent. The respondent by contrast pleaded guilty to what was on any view a serious offence and, having not been sentenced, was a fugitive from justice.
ii) Mr Norgren could not have brought proceedings in any other jurisdiction. He had, as was later established, a sound commercial claim for a large sum of money. The respondent by contrast has chosen to sue in this jurisdiction when he might more naturally have been expected to issue proceedings either in the United States (where the main publication took place) or in France (where he has lived for the last 25 years). It is, moreover, somewhat ironic that the respondent is suing here in respect of his reputation in this country and yet he has not visited it for 25 years and is still not prepared to come here.
iii) Mr Norgren's claim had no connection whatever with the circumstances which put him at risk of arrest and extradition to the United States. The respondent by contrast is suing in respect of his reputation in what Lord Denning MR in Goody -v- Odhams Press  1 QB 333,341 called "the [same] relevant sector of his life" as his 1977 conviction. Eady J held as much in his judgment of 21 October 2003:
"The relevant sector is the claimant's behaviour in sexual matters."
iv) Although, as already indicated, I for my part do not regard the disadvantages of VCF compared to live evidence as the really decisive feature of this appeal, I certainly see them as altogether more significant here, in a libel action before a jury, than in Mr Norgren's commercial claim before the judge.
"Outlaws" and Article 6 of ECHR
"I can see no need for an additional power to prohibit a party who is obdurately in contempt, by reason of his contempt, from enforcing his civil rights or from defending himself against civil claims made against him. A person guilty of the most disgraceful and persistent crimes is not prevented by reason of those activities from enforcing or defending civil litigation. That is so even if he is continuing to threaten to commit a criminal act. If a persistent and serious criminal is allowed to litigate, why should a person in contempt of court be prevented from doing so? I can not see why it is necessary to treat him as a pariah because he has offended a court. It is all to easy for a court to be impressed by its own status. Sir Robert Megarry's Miscellany-at-Law records that in 1631 a litigant who threw a brickbat at a judge, but missed, had his right hand chopped off and nailed to the gibbet on which he was thereafter hanged in the presence of the court. I am not sure what would have happened to him had his aim been better. In any event, we have come a long way since then. The courts needs powers of punishment with which to enforce their orders. The ones they have at present are adequate. They do not need a power which deprives a litigant of his right to litigate. Indeed it seems to me that were the courts to refuse to allow those in contempt access to the courts simply on the grounds that they are in contempt, they could well be acting in breach of the provisions of Article 6.1 of the European Convention on Human Rights which entitles everyone to the determination of his civil rights by means of a fair and public hearing before an independent and impartial tribunal. The 'everyone' in that Article is not subject to an exception in respect of people who are guilty of serious offences or contempt of court."
That, however, may go too far.
"55. [W]hilst wholly deprecating the defiant attitude of the defendants which has, as appears from the evidence before us, been part and parcel of a series of tactical delays and regrettable lack of frankness in two jurisdictions, we bear in mind that the defendants' appeals are essentially defensive in nature. Their stance in this jurisdiction has been one of resistance to a series of restrictive and intrusive orders sought by the claimant in foreign proceedings, rather than a voluntary invocation of the powers of the English court for their own benefit. This seems to us to bear on the proportionality of precluding them, as parties in contempt, from what would otherwise be their right of appeal against the freezing orders to which the orders for cross-examination were ancillary. In all the circumstances, we take the view that the defendants should be heard upon, and their arguments treated as addressed to, all of their appeals and applications now before us." (emphasis added)
"58. First, it is not clear to what extent the proposition was the subject of argument before Laddie J or to what European authority he was referred. Second, it is clear to us that the defendants should not be denied the right to be heard in respect of their alleged contempt and to address the issue as to jurisdiction in that context. Third, as Mr Leggatt has pointed out, the claimant does not in any event contend that the court should decline to hear the defendants' appeal simply on the grounds that they are in contempt, but rather that they are abusing the process of the court by seeking to prosecute their appeal against the first order of Steel J, at the same time making it clear they have no intention of complying with the orders of the court whatever the outcome of their appeals. It is clear that the right of access to the court which is implied in Article 6 is not an absolute right but one that is open to restriction provided that the restriction has a legitimate aim in the public interest and the means employed to realise that aim are proportionate: see Brown -v- Stott  2 WLR 817 per Lord Bingham at 836B-D and Lord Hope at 851H-852A. The test of proportionality is to be applied on a case by case basis: per Lord Bingham at 836C. As it seems to us, this is reflected in the approach of the House of Lords in the Morgan Grampian case, the width of the discretion there recognised being apt to allow issues of proportionality to be properly considered and applied by the court in coming to its decision whether or not to hear a contemnor." (again, emphasis added)
"In my view the principle applies when the claimant's claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct."
Otton LJ agreed with that judgment.
"In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense."
"The medieval concept of outlawry is unacceptable in modern society. An outlaw forfeited the protection of the law. He could not invoke the assistance of the court to enforce non-existent rights. In the United Kingdom today there are no outlaws. However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice. This is the context in which the application in tort of the principle encompassed in the maxim falls to be examined."
"73. The Court recalls that the right of access to court constitutes an element which is inherent in the right to a fair hearing under Article 6(1) of the Convention
74. However, the right of access to court is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved ."
i) The nature of the offence for which the witness risks arrest and whether he has already been convicted of it.
ii) The nature of the civil claim in which the witness seeks to give his evidence by VCF and any relationship between the claim and the offence.
iii) The witness's role in the proceedings. The court will more readily make a VCF order in favour of a defendant than a claimant, and more readily still in favour of a witness who is not a party at all.
iv) The importance of the claim to the witness and the possibilities of litigating it elsewhere.
v) The likely disadvantages of VCF compared to live evidence in the particular case.
we allow the appeal, set aside the judge's direction under CPR 32.3 and further indicate that, if the respondent were to seek to put in his statements as hearsay evidence and the appellants in those circumstances were to apply to call him to be cross-examined upon their contents, the court would be bound to allow such application and if the respondents were not to attend court in person for such cross-examination, the court would then be bound to exclude the statements from evidence."
Lord Justice Jonathan Parker:
Lord Justice Thomas: