|Judgments - Polanski (Appellant) v. Condé Nast Publications Limited (Respondents)
HOUSE OF LORDS
 UKHL 10
on appeal from:  EWCA Civ 1573
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Condé Nast Publications Limited (Respondents)
THURSDAY 10 FEBRUARY 2005
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hope of Craighead
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Polanski (Appellant) v. Condé Nast Publications Limited (Respondents)
 UKHL 10
THE LORD NICHOLLS OF BIRKENHEAD
'"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 viciously 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 his 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 'And I will make another Sharon Tate out of you'".'
The parties' interests
The public interest in the administration of justice
'whether, in the circumstances of an individual case, the interests of justice are best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders.'
Fugitives from justice
Use of a claimant's statements as hearsay evidence
'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.'
LORD SLYNN OF HADLEY
"[VCF] is, however, inevitably not as ideal as having the witness physically present in court . . . 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 its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation."
LORD HOPE OF CRAIGHEAD
BARONESS HALE OF RICHMOND
(1) As between the parties to this action, there is no doubt that this order was correctly made. The respondent will suffer no prejudice from the appellant's evidence being given in this way; it is common ground that any prejudice will be suffered by the appellant, not least because the jury will be forcibly reminded of the reasons why he is not present in person and will be obliged to take them into account where they are relevant.
(2) As between the competing public interest arguments, there is a strong public interest in allowing a claim which has properly been made in this country to be properly and fairly litigated here.
(3) Against that, there is also a strong public interest in not assisting a fugitive from justice to escape his just deserts. But the appellant will escape those deserts whether or not the order is made. He will continue to be outside the reach of the US authorities in any event. All the refusal to allow his evidence to be given by VCF will do is effectively to deprive him of his right to take action to vindicate his civil rights in the courts of this country.
(4) If this were almost any other cause of action, I venture to think that the outcome would not be in doubt. Suppose, for example, that the appellant had suffered personal injuries while in transit from the US to France and his evidence was necessary to prove either the circumstances of the accident or the extent of his injuries: would we hesitate to allow it to be given by VCF? Suppose, perhaps more plausibly, that there were a dispute about whether the appellant had intellectual property rights in one of his films which is distributed or marketed here: would we hesitate to allow his evidence to be given by VCF? It should not make a difference that the right in question is the right to such reputation as he has, rather than a right to bodily integrity or a right to property. That reputation was attacked in an English language publication and is most appropriately defended in an English language jurisdiction.
(5) Generally, therefore, I agree that this should be an acceptable reason for seeking a VCF order, although there may be cases in which the affront to the public conscience is so great that it will not be a sufficient reason. This is not such a case.
"In civil proceedings evidence shall not be excluded on the ground that it is hearsay."
"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.
(3) The court may limit cross-examination."
"1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable, -
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate -
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
"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 ... 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."
I would refer also to the discussion in paragraphs 27-9 of the judgment of Simon Brown LJ in the Court of Appeal, in which he accepted that by reason of the factors there set out "VCF evidence is less ideal even than usual in a case like this".
"In all the circumstances it seems to me that the considerations which I have to take into account in the exercise of my discretion weigh very heavily in favour of this route being taken and the countervailing disadvantage to the defendants is in my judgment very small, if any."
If the only factors to be weighed in the balance were those which operated to confer advantage or impose disadvantage on one or other of the parties, I should have no hesitation in accepting that this was a proper and correct exercise of Eady J's discretion.
"the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of procedure rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."
The principle is one which should be applied on grounds of public policy, not for the benefit of a party who may gain by its application.
"This claimant is a fugitive offender, convicted of a serious offence for which he has yet to be sentenced. Anxious though he may be to nail what he says is the lie about his having sought (34 years ago) to exploit his tragically deceased wife's name, such a libel action is, as Mr Shields submits, a "volunteer action" (or "action for choice") and, moreover, one which could more appropriately have been brought in the United States where the principal publication took place or in France where the claimant lives. He is invoking this court's jurisdiction for his own benefit, not defending a claim brought against him. He should not be permitted to litigate on special terms. No libel action has ever yet been fought in this country in the claimant's absence (although in one action the claimant gave no evidence at all, and in another the claimant gave evidence by VCF as to damages). This is not the appropriate case for that unique distinction. Clearly the court's general policy should be to discourage litigants from escaping the normal processes of the law, rather than to facilitate this. The order made below to my mind overlooks and undermines that policy. If an order is properly to be made in favour of this claimant then it is difficult to imagine a case when it would not be."
Jonathan Parker LJ said at paragraph 58:
"Had Mr Polanski been convicted in England, it seems to me inconceivable that the English courts would have allowed him, as claimant, to conduct civil litigation here via VCF solely in order to enable him to continue to escape the consequences of his conviction; and I cannot see why the fact that his conviction was in the United States, with whom the United Kingdom has an extradition treaty, makes any difference."
Thomas LJ concluded at paragraph 63:
"In the result there can be no reason, let alone sufficient reason, which can properly be advanced to permit the claimant to give his evidence by VCF and thus to depart from the normal rule that a witness should give evidence in person in the court room and be cross-examined in person on it. He is not being shut out from access to justice; it is entirely his decision as to whether he comes to London to give evidence in support of his claim."
"I also believe that the courts in general and your Lordships' House in particular ought to think very carefully before resorting to public policy considerations which will defeat a claim that ex hypothesi is a perfectly good cause of action. It has been said that public policy should be invoked only in clear cases in which the potential harm to the public is incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that the court should not enforce a liability which prima facie exists. Even if one should put the matter in a more neutral way, I would say that public policy ought not to be invoked if the arguments are evenly balanced: in such a situation the ordinary rule of law, once established, should prevail."
"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."
"The Court recalls that the right to a court guaranteed by article 6 of the Convention, of which the right of access is one aspect, is not absolute. It may be subject to limitations, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved. In addition, the compatibility of limitations under domestic law with the right of access to a court guaranteed by article 6 of the Convention will depend on the special features of the proceedings concerned and account must be taken of the whole of the proceedings conducted in the domestic legal order as well as the functions exercised by a court of cassation whose admissibility requirements are entitled to be more rigorous than those of an ordinary appeal court."
In McElhinney v Ireland (2001) 34 EHRR 322 the Court dismissed an application brought by an applicant who claimed that he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant's vehicle following an incident at a checkpoint. He brought proceedings in the Irish courts, which dismissed his claim on the ground of State immunity. The judgment was mainly concerned with the principle of State immunity, but the Court at paragraphs 39-40 of its judgment added a further ground for rejecting the application: since the applicant could have sued the British Government in the Northern Irish courts, the decision of the Irish court did not in these circumstances exceed the margin of appreciation allowed to States in limiting an individual's right of access to court. I accordingly consider that, in application of the principle contained in these cases, no breach of Article 6 was involved in the decision of the Court of Appeal to refuse the appellant permission to give his evidence by video link.