England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Strand London WC2A 2LL
		6 May 2014

MR JUSTICE WALKER:

Introduction

1. By an amended application notice dated 23 April 2014, the applicant, which I shall refer to as "the NCA" sought an order that:

"If the first respondent wishes to rely on the evidence of Shahid Tanveer, Sheikh Ilyas, Nadeem Chaudhry and Samir Jarshey at the trial scheduled to commence on 7 July 2014, they must be called as witnesses either by video link or in person and make themselves available for cross-examination."

The notice asserts that such an order can be made pursuant to CPR 32.1 and CPR 33.4(1).

2. Argument in support of the application has been advanced by Mr Andrew Sutcliffe QC. The application is opposed by the first respondent, whom I shall refer to as "Mr Azam." Mr Philip Coppel QC and Mr Oliver Powell appear today on behalf of Mr Azam.

Background

3. The background to the application is described by Ms Katrina Jameson of the NCA in her first witness statement dated 10 April 2014 ("Jameson"). At paragraphs 5 to 9 of that statement, Ms Jameson says this.

"5. The NCA (previously the Serious Organised Crime Agency "SOCA") issued a claim for a Civil Recovery Order on 19 January 2011 pursuant to section 266 and 246, Chapter 2 of Part 5 of the Proceeds of Crime Act, as amended. Prior to this, on 22 February 2010, Silber J granted a Property Freezing Order ("PFO") to restrain the assets which are now subject to the NCA's claim.

6. The property subject to the NCA's claim is held by five members of the same value. The net value of the claim is approximately £3.3 million. The NCA's case is that all of the property subject to the claim is, or represents the proceeds of unlawful conduct by Mr Azam, a British National, who is the First Respondent to the claim.

7. The crux of the NCA's case is that Mr Azam is a career drug trafficker and money launderer. The NCA believes that Mr Azam has utilised a variety of methods to launder money, including the transfer of cash through money service businesses; the acquisition of properties in the names of numerous family members; and a British Virgin Islands registered company; the acquisition of property in Spain; and the concealment of funds in bank accounts held in Luxembourg.

8. Mr Azam was previously resident in the UAE, where from 2006 onwards he was incarcerated in Sharjah Prison having been charged and then convicted of drug trafficking and money laundering offences. Mr Azam's conviction for drug trafficking has since been set aside. Consequently, Mr Azam was deported back to the United Kingdom in early 2013, following his release from custody, and remains resident in the United Kingdom.

9. The trial in relation to the NCA's claim has been fixed to commence on 7 July 2014, with a time estimate of 12 days."

Witness statements and hearsay notices

4. On 3 February 2014, Eder J, gave directions for the trial. Those directions included in paragraph 4(b).

"Permission is given to the First Respondent to file and serve by no later than 4.00pm on Friday 28 March 2014 any further witness statements (including his own) of all witnesses of fact on whom he intends to rely at trial, together with any supporting evidence and any notices of intention to rely on hearsay evidence."

5. In accordance with that paragraph, Mr Azam's legal representatives Litigaid Law ("Litigaid") on 28 March 2014 served numerous witness statements. Accompanying those witness statements were hearsay notices in respect of 14 witnesses. By a letter dated 3 April 2014, the NCA gave notice to Litigaid that it "intended to apply to cross-examine" certain witnesses. The second to last paragraph of the letter of 3 April 2014 sought confirmation that:

"In light of the fact that the NCA is prepared to agree to the exclusions as outlined above, we ask that you confirm the following by 4pm on Tuesday 4 April:

(i) that the above witnesses will now be able to attend court (either in person or via video-link) to be cross-examined;

(ii) that, in respect of overseas witnesses, you will begin putting place arrangements for the purpose of their attendance via video link."

The final paragraph of the letter of 3 April 2014 stated that in the absence of such confirmation, an application would be made under CPR 33.4(1).

6. Discussions between the legal representatives achieved a measure of agreement. When describing that agreement I shall refer to assets which fell within the property freezing order, as it existed in April this year, as "frozen assets."
7. As regards various witnesses, it was agreed that frozen assets could be used to fund their travel expenses or the cost of an interpreter.
8. The parties also agreed upon the terms of a consent order made by Hamblen J on 15 April 2014, identifying that five of Mr Azam's witnesses were to be cross-examined at trial either in person or by video link. Agreement could not be reached, however, in relation to four of Mr Azam's witnesses. It is these four witnesses who are named in the amended application notice in the passage that I have cited earlier. I shall refer to them individual as Mr Ilyas, Mr Chaudhry, Mr Tanveer and Mr Jarshey and together as "the disputed witnesses."
9. The original application notice sought an order directed to the disputed witnesses themselves requiring them to make themselves available for cross-examination either by video link or in person. The NCA asked that the original application be considered on the papers. The matter was placed before Hamblen J on 14 April 2014. He questioned whether the court had jurisdiction to make the order sought and indicated that if the application was to be pursued it should be made orally.

The reasons for the amended application notice

10. I have helpfully been provided by Mr Sutcliffe with a document entitled "Submissions on behalf of National Crime Agency." For convenience, I shall refer to it as the "NCA skeleton." At paragraph 5, the NCA skeleton says that the NCA agrees with Hamblen J that the court cannot require overseas witnesses to attend for cross-examination either in person or by video link.
11. At paragraph 6, the NCA skeleton says:

"Pursuant to CPR 32.1 and 33.4, the court has power to order that if Mr Azam wishes to rely on the evidence of these overseas witnesses, they must be called as witnesses (either by video link or in person) and make themselves available for cross-examination. This means that if the witnesses are not called (either in person or by video link), and therefore not made available for cross-examination, Mr Azam cannot rely on their evidence even though he has served a hearsay notice in respect of the same. ..."

The justification for seeking the order

12. In Jameson 1 Ms Jameson identified matters said to be relevant to the original application. As regards Mr Tanveer, she said at paragraphs 25 to 32:

"25. Shahid Tanveer is the sixth respondent in the civil recovery proceedings brought by the NCA.

26. On 3 August 2010 Mr Tanveer sent a letter to the NCA (then the Serious Organised Crime Agency "SOCA") on 3 August 2010. A copy of that letter is exhibited at page 52 of KJ/1.

27. In that letter, Mr Tanveer stated:

(i) that he had never purchased or had any association with the following properties, that form part of the NCA's claim, namely: 30a Brackley Road, 16 Allenby Close and 149 Collingwood Road;

(ii) that he was not aware of any of the companies referred to (through which the first two of the above properties were purchased);

(iii) that his identity had been hijacked and his signature forged;

(iv) that he had never received any rental income from any of the properties.

28. That letter was consistent with the NCA's case which is that the properties belong exclusively to the First Respondent.

29. However, in paragraph 2 of his witness statement dated 27 March 2014, Mr Tanveer now states that the letter had been prepared for him by his wife (who is the sister of Mr Azam) and that the letter was 'not accurate'. Mr Tanveer states that the letter had been '... written for fear of what may happen to me as a result of this action.'

30. Mr Tanveer's witness statement goes on to assert that he positively invested in the three properties referred to above and explains how Mr Azam assisted him in the purchase and letting of the same. He also refers to the formation of the offshore companies, Fabio Holdings and Empire Worldwide, through which two of the properties (Allenby Close and Brackley Road) were purchased. He further refers to the subsequent dissolution of the offshore companies on the advice of an associate of Mr Azam's by the name of Jonathan Nuttal.

31. This is (a) important evidence in this case if true; given by one of the Respondents to this claim; (b) not accepted by the NCA; and (c) self-evidently inconsistent with his previous letter to the NCA. In these circumstances the NCA wishes to cross-examine Mr Tanveer on the contents of his statement. It is right that the NCA should be able to put its case, including Mr Tanveer's previous letter, and inappropriate that the court should be required to reach a judgment on this evidence on the basis of his witness statement alone. Conversely, there should be no scope for Mr Tanveer to claim that the NCA could have sought to cross-examine him, but failed to do so.

32. In these circumstances an order for cross-examination is sought. No reason of substance has been given why he would not be available to give evidence at trial."

13. As regards Mr Ilyas, Ms Jameson said in Jameson 1 at paragraphs 33 to 36:

"33. This witness is the cousin of Mr Amir Azam, the First Respondent.

34. In paragraphs 8 to 12 of his witness statement, Mr Ilyas refers to Mr azam opening an account in Luxembourg and suggests that Mr Azam deposited legitimate commission payments into the same. He also suggests that there was nothing untoward about the fact Mr Azam used a pseudonym name for the account.

35. The NCA does not accept Mr Ilyas' evidence. It is the NCA's case that the funds deposited in the KBL and DBL accounts in Luxembourg were the proceeds of Mr Azam's unlawful conduct and that pseudonym was used to conceal his association with the funds.

36. As the NCA challenges the truth of the evidence of this witness it is right that the witness should be given every opportunity to meet this challenge. Conversely, there should be no scope for Mr Ilyas to claim that the NCA could have sought to cross-examine him, but failed to do so."

14. As regards Mr Chaudhry, Ms Jameson's first witness statement said at paragraphs 37 to 41:

"37. Mr Choudry is a business associate of Mr Azam, who states that he conducted business with Mr Azam from 1996 onwards.

38. Mr Choudry is the director of Dachii Motors FZD and is resident in Dubai.

39. In his witness statement, Mr Choudry refers to his business dealings with Mr azam from 1996 inwards. It is the NCA's case that, at the time when Mr Azam was engaging in business transactions with Mr Choudry, Mr Azam was engaged in unlawful conduct.

40. The NCA does not accept the truth of Mr Choudry's evidence which is to the effect that Mr Azam was a legitimate businessman. The account given by Mr Choudry in his witness statement as to the nature and detail of his business dealings with Mr Azam and another witness, Mr Kevin Seaton is also inconsistent, in part, with the accounts given by those other two witnesses. For his part, Mr Azam relies upon his business dealings to rebut the NCA's case that his income was in fact from the proceeds of criminal conduct.

41. Again, as the NCA challenges the truth of the evidence of this witness it is right that the NCA should be given an opportunity to test this evidence. Conversely, there should be no scope for Mr Choudry to claim that the NCA could have sought to cross-examine him, but failed to do so."

15. As regards Mr Jarche, Ms Jameson said in Jameson 1 at paragraphs 42 to 45:

"42. Mr Jarche is an associate of the First Respondent, Mr Azam.

43. Mr Jarche is currently resident in Dubai.

44. In his witness statement, Mr Jarche refers to his association with Mr Azam and business transactions with Mr Azam, at the time that Mr Azam was subject to police surveillance under Operation Oboe in 2000.

45. Mr Jarche's evidence which is material to some of the core allegations of criminality and is disputed by the NCA. For the reasons already set out in relation to the witnesses above, the NCA should be provided the opportunity to test this witness' evidence."

16. Under the heading "Conclusion" at the end of Jameson 1, paragraph 46 said in relation to the disputed witnesses generally:

"This is a case in which there are considerable sums of monies and real property at stake in this case. The evidence of these four witnesses is plainly material to the resolution of this claim."

17. At paragraph 47 of Jameson 1 the court was invited to make "an order for cross-examination under r.33.4(1) of the Civil Procedure Rules ..."
18. In conjunction with the amended application notice, Ms Jameson made a second witness statement, dated 23 April 2014 ("Jameson 2"). That witness statement referred to the observations that had been made by Hamblen J and explained that, following receipt of those observations, amended drafts had been prepared.
19. A section of Jameson 2 entitled "Conclusion" relied in paragraph 10 upon the reasons which had been set out in Jameson 1. In paragraph 11 it repeated that the court was invited to make an order for cross-examination under Rule 33.4(1) of the Civil Procedure Rules.
20. In paragraphs 6 and 7 of the NCA skeleton, Mr Sutcliffe drew attention to points which were made by the NCA in correspondence or in Ms Jameson's witness statements. At paragraph 6, immediately after the passage cited earlier, the skeleton describes the effect of the order sought and added that it was important that the order be made now, so that Mr Azam would be under no illusions as to the importance of taking steps to ensure that the disputed witnesses made themselves available for cross-examination.
21. At paragraph 7, Mr Sutcliffe noted that in a telephone conversation on 9 April 2014, Mr Azam's solicitor said he would set out in detail in writing why the witnesses could not attend court, explaining orally that the reasons were to do with "their business commitments and that it is difficult to pin down exactly which country each witness would be in at any one time." Nothing further had been received from Litigaid.
22. Mr Sutcliffe submitted that these suggested reasons were wholly inadequate. If the witnesses were unable or unwilling to attend court in the United Kingdom, there was no reason why arrangements could not be made for them to give evidence by video link, pursuant to CPR 32.3.

CPR 32.1

23. Numerous statutes give specific powers to make rules of court relating to evidence. The broadest of these powers is found in Section 1(2) of the Civil Procedure Act 1997. Under that section, the extent of the power to make civil procedure rules include its power to "modify the rules of evidence as they apply to proceedings in any court within the scope of the rules." General provisions concerning evidence are found in Part 32 of the Civil Procure Rules. Miscellaneous rules about evidence are found in CPR 33.
24. At the outset of CPR 32 the court's powers are described in this way:

32.1

(1) The court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(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."

25. It is convenient to note the provision made in CPR 32.6 and 32.7 for evidence at hearings other than a trial. Under CPR32.6 the general rule at such hearings is that evidence is to be by witness statement. However, under CPR 32.7 in relation to such a witness statement, any party may apply to the court for permission to cross-examine the person giving the evidence. CPR 32.7 then provides:

"(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."

CPR 33.4

26. In CPR 33, rules 33.1 to 33.4 deal with hearsay evidence. CPR 33.2 provides for notice of intention to rely on hearsay evidence. CPR 33.3 sets out certain circumstances in which notice of intention to rely on hearsay evidence is not required. CPR 33.4 is headed, "Power to call a witness for cross-examination on the hearsay evidence." It is in these terms:

"33.4

(1) 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.

(2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant."

The circumstances contemplated by CPR 33.4

27. At a relatively early stage in the oral submissions of Mr Sutcliffe, I raised with him a point which did not seem to me to have been addressed in the NCA skeleton argument. It was this: on the one hand CPR 33.4 contemplates that there may be a party that wishes to cross-examine the maker of a statement proposed to be relied upon as hearsay evidence. What CPR 33.4 then does is to give the court power to permit the party wishing to cross-examine to call the maker and to cross-examine the maker about the contents of the statement. That seemed to me to be something quite different from the order sought in the amended application notice. The order sought in the amended application notice was an order which said that if Mr Azam were to rely upon the disputed witnesses, then certain things must happen. Such an order might or might not be appropriate under the general powers in CPR 32.1, but it did not seem to me to fall within the specific power in CPR 33.4.
28. Mr Sutcliffe's first answer in response was that there were cases in which the court had spoken of an order under CPR 33.4 in terms similar to those set out in the amended application notice. I shall return to that aspect of the case shortly. What became clear though was that Mr Sutcliffe's understanding of the expression "call the maker of the statement" was different from the ordinary usage of that expression. Ordinarily when in legal proceedings one speaks of a witness being called to give evidence, this describes a party producing a witness who is called to come to the witness box or in more recent years, gives evidence by video link.
29. Mr Sutcliffe alternatively suggested that in the present case the consequence of a grant of permission under CPR 33.4 would be to enable the NCA to write to the disputed witnesses saying that the court had given permission for it to call them. Mr Sutcliffe submitted that the likelihood was that the witness concerned would be the witness of the party that relied upon the hearsay evidence. Accordingly, he added, that: "in almost all of these situations, the party relying on the hearsay will be expected to assist in producing the witness."
30. Mr Sutcliffe also made a submission as to the consequences if, after the court had made an order under CPR 33.4, a witness failed to attend. I shall come on to deal with those consequences shortly.
31. It is convenient at the present stage to look at the authorities relied upon by Mr Sutcliffe, to see whether they make good his contention that CPR 33.4 envisages an application by a party which is unable to produce and does not propose to produce the maker of the statement to give evidence in court or by video link.

The Authorities

32. The first case relied upon by Mr Sutcliffe is Douglas v Hello! Limited (No. 4) [2003] EWCA Civ 332; [2003] EMLR 30. What happened in that case was that certain of the defendants obtained a statement from a Miss Neal, who at the relevant time had been employed by the first defendant. The claimants then obtained a supplemental statement from Miss Neal.
33. At a stage when evidence on behalf of the first defendant was almost complete, Mr Price QC, who appeared for the first defendant, put the statements of Miss Neal in evidence. Mr Tugendhat QC, on behalf of the claimants, then applied to have Miss Neal called to give evidence so that he could cross-examine her. The judge noted that the statements had been admitted as hearsay evidence under CPR 32.5(5). He held that Mr Tugendhat's application was within the court's jurisdiction under CPR 33.4 as he was seeking to cross-examine a witness whom he had studiously not made his own, and that witness would have relevant evidence to give.
34. The matter came urgently before the Court of Appeal. The leading judgment was given by the Lord Chief Justice, Lord Woolf, with whom Kennedy and Scott Baker LJJ agreed. At paragraph 10 of his judgment, Woolf L set out CPR 32.1 adding:

"That rule gives the court very wide powers to control evidence which is adduced; but Mr Price is right in submitting that it does not entitle the judge to look for evidence. It is the obligation of the parties to produce the evidence on which they rely to support their case and to rebut the case of the other side."

35. Mr Sutcliffe drew my attention, in particular, to paragraphs 15 to 17 of the judgment:

"15. Part 32.5 is an important rule. It provides:

'(1) If --

(a) a party has served a witness statement; and

(b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts in the statement as hearsay evidence.'

There is then a note which is not without relevance to the present issues. It reads:

'Part 33 contains provision about hearsay evidence.'

The Part continues:

(2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the court orders otherwise."

Then there is power for the witness to be able to amplify his statement. It is necessary in addition to refer to rule 32.5(5) which provides:

'If a party who has served a witness statement does not --

(a) call the witness to give evidence at trial; or

(b) put in the witness statement as hearsay evidence,

any other party may put in the witness statement as hearsay evidence." (my emphasis).'

That rule sets out what Mr Price did in this case. The other parties had not called Miss Neal to give evidence. Nor had they put the witness statement in as hearsay evidence. Mr Price therefore put in the witness statement as "hearsay evidence".

16. The reference to 'hearsay evidence' takes us to Part 33, which is the part on which Mr Tugendhat relies in support of the judge's decision. Earlier rules in Part 33 deal specifically with hearsay evidence. For present purposes it is sufficient to refer to Part 33.4 which provides:

'(1) 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.

(2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which notice of intention to rely on the hearsay evidence was served on the applicant.'

17. Mr Price submits that Part 33.4 was not intended to apply to this sort of situation where his clients had not prepared or assisted the witness to prepare the statements which were adduced in evidence. Whether that be right or not, I have no doubt at all that the language of 33.4 is apposite to cover the situation which we have here. The parties (namely Mr Price's clients) proposed to rely on hearsay evidence. They did not propose to call the person who had made the original statements to give oral evidence. That being so the judge, in my judgment, had a discretion to require the witness to be called and for Mr Tugendhat's clients to be in a position to cross-examine the maker of the statements on their contents. Because of the way matters happened, formal hearsay notices had not been served in this case. But that does not affect the fact that Part 33.4 covered this situation. When Part 33.4 is read together with Part 32.5(5), with its reference to hearsay evidence, the applicability of 33.4 to the present position in my judgment becomes clear."

36. Mr Sutcliffe also relied on paragraphs 19 to 20:

"19. On the evidence which is before us that nobody knows precisely what Miss Neal will say as and when she comes to give evidence. But be that as it may, it seems to me that the judge was perfectly reasonable to take the view, that he did, that it would assist the achievement of justice in this case for this lady to give evidence and for him to have the benefit of her evidence because she clearly played a central role in the negotiations which are part of the subject matter of this hotly contested litigation. From his point of view it could prove to be highly desirable to know the facts rather than for the matter to be dealt with on the basis of the inferences which Mr Price sought to draw from Miss Neal's statements.

20. It is significant to note that there are limits to the power of the court under Part 33.4; it is to allow the maker of the statement to be cross-examined as to its contents. That provision does not enable Mr Tugendhat to cross-examine the witness when she is called as to matters that do not arise out of the statement. Reference to the "contents" of the statement confines it to matters dealt with in the statement. But a reasonable approach has to be adopted to determine what are the contents of the statement for that purpose. The trial judge has a considerable discretion over the extent of the cross-examination. If he considers that the cross-examination is going beyond proper bounds, then his powers to control evidence enable him to limit the evidence in an appropriate manner. The judge can be relied upon to see that no unreasonable use is made of the powers of cross-examination."

37. I asked Mr Sutcliffe whether there was any passage in the report of this case which suggested that the claimants were unable to produce Miss Neal to give evidence. Mr Sutcliffe submitted that it was not clear where Miss Neal was located. As it seems to me the claimants, having obtained a supplemental statement from Miss Neal, can be expected to have been able to call her. It may well be that she was within the jurisdiction and could be made susceptible to an order that she attend to give evidence. As it seems to me, the case is certainly no authority for the proposition that CPR 33.4 contemplates an order of the court permitting a party to call the maker of the statement to be cross-examined, in circumstances where that party is unable to produce, and does not intend to produce, that person.
38. It is right to note that in paragraph 17, Lord Woolf refers to the judge having a discretion "to require the witness to be called." The use of the word "require" in that sentence is, in my view, in context clearly a reference to the grant of an application under CPR 33.4 so as to enable Mr Tugendhat to cross-examine the maker of the statements on their contents.
39. The next case relied upon by Mr Sutcliffe was Polanski v Condé Nast Publications Limited [2005] UKHL 10; [2005] 1WLR 637. Mr Polanski had brought libel proceedings in this country. However, he was a fugitive and would not come within the jurisdiction for fear of being extradited to the United States of America. The Court of Appeal had held that in these circumstances he should not be permitted to give his evidence by video conference link from France. By a majority, the House of Lords reversed the decision of the Court of Appeal. In the view of the majority, just as Mr Polanski's fugitive status did not prevent him from bringing proceedings here, so it should not prevent him from utilising the court's powers to order that evidence be given by video link.
40. Mr Sutcliffe relied upon observations of Lord Nicholls, with whom Lord Hope of Craighead and Baroness Hale of Richmond agreed. Those observations concerned remarks by the Court of Appeal on the possibility that Mr Polanski might put his statements in evidence under the hearsay provisions. Lord Nicholls said this at paragraphs 35 and 36 of his speech:

"35. I add a brief footnote on a different procedural point raised before the Court of Appeal. Having regard to the conclusion I have reached on the main issue this point does not strictly arise on this appeal. But it is a point of general importance to practitioners. In the present case the Court of Appeal set aside the judge's VCF order and added this:

'and [we] further indicate that, if the claimant were to seek to put in his statements as hearsay evidence and the defendants 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 claimant were not to attend court in person for such cross-examination, the court would then be bound to exclude the statements from evidence.'

36. I agree with the Court of Appeal that the court's case management powers under CPR 32.1 are wide enough to enable the court to make the orders indicated by the Court of Appeal in this passage. But I do question whether in the present case, had a VCF order been refused, the court would have been 'bound' to make an order excluding Mr Polanski's statements from evidence if he did not present himself in court for cross-examination. Such an exclusionary order should not be made automatically in respect of the non-attendance of a party or other witness for cross-examination. Such an order should be made only if, exceptionally, justice so requires. The overriding objective of the Civil Procedure Rules is to enable the court to deal with cases justly. The principle underlying the Civil Evidence Act 1995 is that in general the preferable course is to admit hearsay evidence, and let the court attach to the evidence whatever weight may be appropriate, rather than exclude it altogether. This applies to jury trials as well as trials by judge alone, as noted by Brooke LJ in the judgment of the court in O'Brien v  Chief Constable of the South Wales Police [2003] EWCA Civ 1085, paras 68-69."

I find it difficult to see how there is anything in those paragraphs which assists the NCA in the present case.

41. Mr Sutcliffe asserted that those observations must have been made by reference to CPR 33.4, because the case involved hearsay. Any reference to CPR 33.4 is conspicuously absent from the speech of Lord Nicholls. It seems to me that it is clear from the opening words of paragraph 36, that the only power of the court which was put forward as a basis for the suggestion made in the Court of Appeal was the general power in CPR 32.1. I shall come on to CPR 32.1 shortly.
42. To my mind there is an obvious reason why CPR 33.4 was not referred to by Lord Nicholls, it is this. The defendant in that case was in no position to produce Mr Polanski to the court. It could not have imagined that it would be able to persuade him to come to this country. Unless it were able to call him, then on the ordinary meaning of the words used in CPR 33.4, that provision simply could not assist the defendant. In the particular circumstances of that case, of course, calling him by video link would have been of no utility. What the court was concerned with was the question whether he should be prevented from giving evidence other than by appearing in person in circumstances where he was a fugitive.
43. The final case referred to by Mr Sutcliffe was Constantin Medien v Ecclestone [2013] EWHC 2674 (Ch), a decision of Vos J given orally on 22 July 2013. In his judgment Vos J dealt with a number of matters which had arisen at a late stage before a trial was due to begin in the Michaelmas Term of 2013. One of those matters concerned an application for an order permitting the claimant ("Constantin") to call as a witness a Mr McKenzie for cross-examination. Mr McKenzie had made statements in German proceedings which were the subject of hearsay notices served by both Constantin and the defendants. In the course of the hearing before Vos J, however, Constantin withdrew its notice in respect of that evidence.
44. Vos's J consideration of that matter was set out in paragraph 124 and 125 of his judgment.

124. The question under Part 33.4 is rather more straightforward now that the claimant has decided not to rely on parts of the statement made by Mr McKenzie in the German proceedings. The position now is that the first defendant has served a Civil Evidence Act notice referring to large tracts from Mr McKenzie's statement in the German proceedings covering many matters that are extremely relevant to the issues in this case. It seems to me that the discretion given to the court under Part 33.4 should, in those circumstances, be exercised so that there should be an order that if the defendant wishes to rely on Mr McKenzie's evidence, he should be called as a witness so that the claimant can cross-examine him on those statements. It will be a matter for the trial judge to decide the extent of that cross-examination and any other matters arising from it. It will be noted, of course, from the note in the White Book that I read out earlier in this judgment that it remains open to the first defendant to decide whether to rely on those statements, because he has not yet done so, as Tomlinson J held in the case of Tsavliris Russ supra.

125. I will therefore make the order sought in relation to Mr McKenzie's cross-examination.

45. Mr Sutcliffe rightly observed that it is not clear from paragraph 124 whether any party, or if so which, was in a position physically to produce Mr McKenzie. What is to my mind equally important is that there is nothing in the judgment to suggest that Constantin was unable to call Mr McKenzie in the sense of producing him either in person or by video link. Mr Sutcliffe relies upon the form of words used by Vos J in the third sentence of paragraph 124:

"...there should be an order that if the defendant wishes to rely on Mr McKenzie's evidence, he should be called as a witness so that the claimant can cross-examine him on those statements."

46. This formulation, however, appears to me to be consistent with Constantin being in a position to call Mr McKenzie if that were thought desirable.

The notes in Civil Procedure 2014

47. Mr Sutcliffe placed reliance upon terminology found in various passages in the notes to CPR 33.4 in Civil Procedure 2014. As it seems to me, those passages refer to the observations cited above and are to be read in the context that I have described.

CPR 32.1

48. It is not in doubt that the court has power under CPR 32.1 to shut out evidence. What, however, as it seems to me is clear from the passages cited from the speech of Lord Nicholls in Polanski v Condé Nast Publications Limited, is that an exclusionary order should be made only if, exceptionally, justice so requires.
49. As to what justice requires in the present case, Mr Sutcliffe makes six submissions. His first is that the evidence of each of the disputed witnesses is important. That is common ground. The outcome of the case turns largely on the credibility of Mr Azam and his witnesses. NCA says he has benefited considerably from criminal conduct and is not telling the truth when he says that the frozen properties were acquired by legitimate means.
50. Second, these witnesses seek to corroborate what Mr Azam says and, submits Mr Sutcliffe, their evidence needs to be properly tested.
51. Third, this is particularly so in the case of Mr Tanveer. He is the seventh respondent and his evidence contradicts a document dated 3 August 2010, which he signed.
52. Fourth, the reasons advanced for not attending by video link or in person are said by Mr Sutcliffe to be wholly unsatisfactory. A promise to explain the reasons for them not attending has not been fulfilled. There have been no details of the difficulty alleged, indeed, that difficulty has been described in terms of the problems of attending to give evidence in this country and no details whatever have been given of why, if at all, arrangements for a video link would cause any problem.
53. Fifthly, Mr Sutcliffe submitted that this was one of those exceptional cases where it was appropriate that there should be an order from the court requiring attendance with the consequence that, if there was no attendance the court should then either ignore the evidence or attach little or no weight to it.
54. Mr Sutcliffe's sixth submission was that the CPR required the application to be made now so that Mr Azam had time to make his witnesses available. If the step of seeking an order from the court were not taken now, the trial judge would criticise NCA for not having made an application.
55. In relation to these submissions, I queried whether Mr Sutcliffe was right to submit that the order sought by the NCA would put the trial judge in a position where the judge could conclude that little or no weight should be attached to the evidence. As it seemed to me, the order sought to exclude the evidence. Mr Sutcliffe in those circumstances submitted orally, that the order might be rephrased so as to indicate that if the witness did not attend then the court would be able to ignore the evidence or attach little or no weight to it.
56. I accept that the issues to which the evidence would have relevance are important issues. To my mind, however, the evidence does not come within a country mile of the kind of evidence which Lord Nicholls had in mind in the Polanski v Condé Nast Publications Limited case as exceptionally justifying an exclusionary order.
57. I can see no reason why in the present case the trial judge would be in any way inhibited in forming the view as to the weight to be given to this material if the makers decline to attend to be cross-examined. The trial judge, however, will be in a much better position to consider what course is appropriate. It would only be at trial that the judge will know the precise circumstances in which the failure to attend to give evidence has occurred.
58. I do not accept that there was any need for the NCA to issue this application. It was plainly ill-founded in its original form for the reasons that I have given. Even as amended, it was at best based upon a misunderstanding of the provisions in CPR 33.4 and CPR 32.1.
59. In those circumstances, I refuse the application.
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