Practice and Procedure


PUBLISHED November 11, 2003

The claimant in a libel action who was a fugitive from US justice was not to be permitted to give evidence by video conference link from France so as to avoid coming to the UK where he might be arrested and extradited.Appeal by the defendant ('Conde Nast') to a libel action from the decision of Eady J on 9 October 2003 under CPR 32.3 that the claimant ('P') should be permitted to give his evidence by a video conference link ('VCF') from Paris. P was resident in France. The reason he did not wish to give his evidence live in London was because he was a fugitive from US justice and feared that he would be arrested in London and extradited to the US.HELD: (1) The underlying assumption in the court below was that if P was not permitted to give evidence by VCF and chose to remain in France, his written statements could be put before the jury as hearsay evidence. The court could and should exclude those statements under CPR 32.1 if P refused to attend for cross-examination as required. It was more appropriate in a case like this to refuse a VCF order if the consequence was to prevent the evidence being given at all, than if it was to result in the evidence being adduced instead in writing. The critical question therefore was whether P should be able to pursue his libel claim at all if he was not prepared to attend court to give live evidence in the usual way. (2) VCF evidence was even less ideal than usual in a case such as this, where P's character, credibility and reputation were crucial and where his evidence was to be assessed by a jury. However the judge was right that any prejudice from the evidence being given in that way would more likely be suffered by P than by Conde Nast. (3) It was an indulgence to permit P to give his evidence by VCF and as a matter of policy that indulgence should not be granted. The court should have regard to all the circumstances in deciding whether it was appropriate to make a VCF order specifically to enable a witness to evade the ordinary processes of the criminal and extradition law under which he might lose his liberty. Newman J set the threshold for making such orders too low in Rowland v Bock (2002) 4 All ER 370. It was wrong to make a VCF order in the present circumstances. P was a fugitive. His libel action was a volunteer action that could more appropriately have been brought in the US where the principal publication took place or in France where P lived. He was invoking the court's jurisdiction for his own benefit not defending a claim against him. No libel action had yet been fought in England in the claimant's absence. (4) P's rights under Art.6 of the European Convention on Human Rights were not infringed by refusing him permission to give evidence by VCF. He could and should attend court to give his evidence in the ordinary way. It was legitimate and proportionate to make his access to justice conditional upon such attendance.Appeal allowed.

[2003] EWCA Civ 1573