Jersey Unreported Judgments

[2005]JRC027B

royal court

(Samedi Division)

10^th March, 2005

Defendants application for (a) evidence to be adduced by video link; and (b) admission as relevant to this trial of certain information provided by the Plaintiff pursuant to the order of 17^th January, 2005.

Advocate P.S. Landick for the Plaintiff.

Advocate D.J. Benest for the Defendants.

judgment

the COMMISSIONER:

1.        At a pre-trial review on 9^th December 2004, on the application of Advocate Benest on behalf of Miss Carla Critchlow, the Third Defendant, I granted leave for Miss Critchlow to give evidence at the trial of the liability by video-link from Australia.  As the application was vigorously resisted by Advocate Landick on behalf of Mr. McCann I now give the reasons for my decision.

2.        The application arose in the following way.   At the time when the matter came before me on 9^th December 2004 all issues arising in the action (PL2002/15), together with action No. 2000/167, had been set down for trial in April 2005, no order for separate trials of liability and damage having been made.  It seemed to me, however, that there would be considerable merit in resolving all outstanding issues of alleged negligence - which at that stage was still in contention Action No. 2000/167 and two of the four road-traffic accidents in Action No. 2202/15 - before engaging in a trial on issues of causation and quantum of damage and I gave directions accordingly.  Later the same day trial of liability (in the sense of breach of duty) in the cases against Miss Critchlow and Mr. De Jesus was fixed with the Bailiff's Judicial Secretary for 17^th February 2005, and trial of corresponding issues against the Defendants in Action No. 2000/167 was fixed for the following week.  Questions of causation and quantum in both actions were designated for trial together in April 2005.

3.        Unfortunately, as Mr. Benest readily accepted, the new liability-trial date of 17^th February was fixed without anyone having first checked with Miss Critchlow that this was convenient for her.  Any such inquiry would have revealed that she was on the point of departure for Australia (leaving, as she did, shortly before Christmas) and would not be back in time for the trial.

4.        The fact that she would be in Australia at the material time only seems to have come to light sometime in the course of January.  Difficulties were initially encountered in establishing her whereabouts as she was travelling around that continent, but contact was eventually made and provisional arrangements made by Bailhache Labesse for her to be available for a video-link hearing if the Court were to give leave for that to take place.  It was against this background that the application came before me on Wednesday 16^th February.

5.        Mr. Landick submitted that the application should be refused; that the trial should proceed without Miss Critchlow and judgment given against her; alternatively, the trial should be adjourned to a date when she could be present.

6.        He referred me to the notes to rule 32.3 of the English Civil Procedure Rules  1998 and to a number of authorities in which courts have had occasion to consider applications of this kind, including in particular Rowland v. Bock [2002] EWHC 692 (QB), [2002] 4 AER 370, a decision of Mr. Justice Newman, and Polanski v. Conde Nast Publications Ltd. [2003]EWCA Civ 1573 [2004]1AER 1220 in the Court of Appeal and the subsequent decision of the House of Lords (allowing, by a majority, the appeal) as recently reported in The Times on 11^th February 2005.  Newman J., as it seems to me, rightly emphasised that "No defined limit or set of circumstances should be placed upon the discretionary exercise to permit video link evidence", the objective being to enable the court to do justice (para.9).  But beyond this, the two cases appeared to be of limited assistance to me in the present matter, turning very much as they did on their own particular facts.

7.        As far as guiding principle is concerned, the approach to be followed in the Royal Court appears to me to be capable of being expressed very shortly. The normal practice and expectation of the court is that witnesses should be present in court to give evidence in person: giving evidence by video-link is not yet a mere optional alternative. The court does, however, have a discretion to permit the use of a video-link where there is good reason to do so and it is judged that the interests of justice - as between the immediate parties and in the wider sense of the expeditious and efficient management of litigation - would best be served. How that discretion is exercised in any particular case will depend on the circumstances of the case as a whole and the court's assessment of the justice of the matter.

8.        In the present case, the main factors that influenced my decision were these:

(i)        It is plain that Miss Critchlow was not to blame for finding herself in Australia when she was wanted in the Royal Court for the trial of her case on 17^th February.  Even if she had been notified of the date more quickly than appears to have been the case it would have been unrealistic and unreasonable to have expected her to return from the other side of the world at that sort of notice.  Mr. Landick said that he had been given to understand that Miss Critchlow did not intend to return until sometime in 2006. In that case, he submitted, she plainly had no intention even of attending the trial originally fixed for April 2005, was deliberately absenting herself from the proceedings and should have judgment entered against her without more ado.  There was, however, no hard evidence before me on which I could properly have been satisfied of any such evasive intention. 

(ii)       Mr. Landick rightly placed considerable emphasis on the fact that the respective credibility of Mr. McCann and Miss Critchlow would be an important factor in a case in which the parties themselves were the only witnesses to the incident in question and that evidence by video-link is not the same as having the witness in court, particularly when it comes to cross-examination.  I also bore in mind that Miss Critchlow was not a disinterested third party but the Defendant to the claim.  On the other hand the issue in the case could hardly have been more limited in scope (an alleged collision between two vehicles on a quiet road); in Mr. McCann's own words the impact was "minor"; the need for Miss McCann to be referred to documents was minimal; and the whole exercise of taking her evidence was clearly going to take no more than an hour or so at the outside. Nor, in a case of such a kind, was there likely to be any great difficulty as regards assessment of the witness's demeanour (as indeed the Court found to be the case in practice).

(iii)      The trial on Thursday 17^th February was one of a sequence of three related hearings arrangements for which had been designed to ensure orderly and efficient resolution of the various issues involving two actions and five defendants. Its adjournment would have involved a disruption of those arrangements disproportionate to any likely gain.

(iv)      Miss Critchlow was available to give evidence the following day if required. The technical arrangements had provisionally been put in place. 

(v)       Any inconvenience or additional expense incurred by or on behalf of Mr. McCann could, if otherwise appropriate, be remedied by an appropriate order in costs.

9.        In these circumstances, it seem clear to me that the interests of justice were best served by acceding to Mr. Benest's application and getting on with hearing Miss Critchlow's evidence by video-link the following morning (as in the event was done).

Authorities

Rowland -v- Bock [2002] EWHC (Q.B.) [2002]4All ER370.

Polanski -v- Conde Nast Publications Ltd. [2003]EWCA Civ 1573 [2004] 1 All ER 1220.