The perils of giving video evidence

One of the many ways that litigation has been impacted by the pandemic is the effect of restrictions on travel, in particular international travel. Out of necessity, trials are increasingly being held entirely remotely or in “hybrid" format, with technology which allows the judge, advocates and witnesses to participate in proceedings by video link without needing to travel to Court. Such facilities were rarely provided before and this evolution has increased transparency and helped keep the Court diary moving, but has revealed a crucial and little-known technicality which arises when the witness is located outside the UK: in some jurisdictions it is illegal to give evidence via video link from that territory to a Court in another jurisdiction.

This problem was recently discussed by HHJ Hacon in the High Court in InterDigital v Lenovo, which addressed a discrete point but is most interesting because it highlights a wider potential issue. InterDigital intended to call an expert witness to give oral evidence at trial, a Dr Moss who lives in Germany. Dr Moss had prepared and served expert reports and intended to travel to the UK to give evidence in person, but InterDigital sought permission for him to give his evidence remotely in the event that he was prevented from travelling. Lenovo raised no objection to the permission but argued that German law requires an individual to obtain permission from the German Court before doing so (German law considering this to be a question of sovereignty and territorial integrity), so the permission should be subject to the proviso that consent is obtained from the competent German authority. InterDigital did not accept this position and so the parties were ordered to adduce evidence on German law as to the legality of giving evidence from within German territory to a trial being held in another jurisdiction. The Court reviewed the evidence, inferred that there would be a lively debate on the question in German legal circles and accordingly found that there is a real risk that if it were to give permission for oral evidence to be obtained by video from Germany without the permission of the German court then it would lead to a breach of German law. The permission was granted but made subject to the proviso and so InterDigital was required to obtain the relevant consent if Dr Moss was unable to travel.

The facts of this case relate specifically to the position under German law. However, the case is significant because it evidences a wider principle – HHJ Hacon held only that there are restrictions in Germany, but it is safe to assume that equivalent restrictions will also apply in other jurisdictions.

Crucially, when this issue arises it is not within the English Court's power to remedy it. There have now been a number of cases in which the relevant permissions have been obtained and used at trial, notably in respect of Germany and Switzerland, and in light of the ongoing travel restrictions it seems reasonable for authorities readily to grant such requests as they did in those cases. However, the salutary lesson is that it cannot be assumed that evidence may freely be given to an English Court from within the territory of another jurisdiction and so if it seems likely that such a need may arise: (i) take local advice; and (ii) provide plenty of time before the relevant hearing in order to obtain any permissions which may be required.

 

Update

On 11 May 2021, the Chancellor published a Practice Note which confirms that it is the party calling the witness who must obtain the relevant permissions; and, that party must inform the court that permission has been obtained at the Pre-Trial Review or, if no PTR is held, when the pre-trial checklist is filed.