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QUEEN'S BENCH DIVISION [2002] EWHC 692 (QB), [2002] 4 All ER 370 HEARING-DATES: 6, 7, 8, 12, 13, 14, 15 February, 25 March 2002 25 March 2002 CATCHWORDS: Evidence -- Mode of giving evidence -- Video link -- Principles governing exercise of discretion to allow evidence to be given through video link -- Human Rights Act 1998, Sch 1, Pt I, art 6 -- CPR 1.1, 1.4, 32.3. HEADNOTE: The claimant, a Swedish businessman, brought proceedings in England against the defendant. The claimant was subject to a request for his extradition to the United States, and he risked arrest upon warrant if he entered the United Kingdom. He therefore sought the court's permission, under CPR 32.3 (Rule 32.3 is set out at [5], below), to give his evidence at trial by way of a video link. Rule 32.3 was part of the procedure for furthering the overriding objective of the CPR, set out in r 1.1 (Rule 1.1 is set out at [5], below), of enabling the court to deal with cases justly. Dealing with a case justly included ensuring that the parties were on an equal footing. Rule 1.4(2)(k) (Rule 1.4, so far as material, provides: '(2) Active case management includes -- . . . (k) making use of technology . . .') envisaged the active management of cases by making use of technology. The master held that it would be unfair to the defendant to be cross-examined in court when the claimant would be cross-examined on video; that his discretionary exercise was to determine whether the circumstances that prevented the claimant from coming to England should outweigh the disadvantages to the defendant arising from his inability to cross-examine the claimant in person; that the giving of evidence through video link was a second class way of conducting a trial; that it should only be ordered where there was a pressing need for an order, eg if a witness were too ill to attend in person; and that the extradition proceedings against the claimant were a separate matter. On that approach, he refused the application. The claimant appealed to the judge, relying, inter alia, on the right to a fair hearing in art 6 (Article 6, so far as material, provides: '(1) In the determination of his civil rights and obligations . . . everyone is entitled to a fair . . . hearing . . .') of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). Held -- No defined limit or set of circumstances should be placed upon the discretion to permit video link evidence. A conclusion to the contrary would conflict with the broad and flexible purpose of the CPR. Although a refusal to attend which could be characterised as an abuse or contemptuous, or which sought to obtain a collateral advantage, could be envisaged as putting an application beyond a favourable exercise of the discretion, CPR 1.1 and 1.4 envisaged considerations of costs, time, inconvenience and so forth as being relevant considerations. Moreover, save in exceptional circumstances, full access to the court for justice in a civil matter should not be at the price of a litigant losing his liberty and facing criminal proceedings. In the instant case, the master had failed to pay sufficient regard to the recognition accorded by the CPR to video link evidence, and his conclusion that it should only be ordered in cases of pressing need was too restrictive. He had also failed to pay sufficient regard to art 6 of the convention and to the need to ensure that the parties were on an equal footing. Whatever difference there might be between video link evidence and live evidence in court, the parties would plainly be on a more equal footing than if one party was present and cross-examined while the evidence of the other was confined to the reading of a statement pursuant to a Civil Evidence Act notice. Furthermore, the master had paid too little attention to the claimant's reason for objecting to come to England; had underestimated the court's ability to make due allowances for any technological consequences on the demeanour and delivery of evidence by video link; and had failed to consider the advantage of a party being able to give live evidence. Accordingly, the appeal would be allowed (see [9], below). NOTES: For the overriding objective, active case management and the discretion to allow the giving of evidence through a video link, see 37 Halsbury's Laws (4th edn reissue) paras 60, 62, 952. For the Human Rights Act 1998, Sch 1, Pt I, art 6, see 7 Halsbury's Statutes (4th edn) (2002 reissue) 554. CASES-REF-TO: G v G [1985] 2 All ER 225, [1985] 1 WLR 647, HL. INTRODUCTION: Appeal and action The claimants, Josephine Rowland (suing as executrix of Roland Walter Rowland, deceased) and Christian Norgren, appealed with permission of Garland J granted on 22 November 2001 from the decision of Master Prebble on 3 October 2001 refusing Mr Norgren permission to give evidence by way of video link in the trial of an action for the recovery of a debt brought by the claimants against the defendants, Dieter Bock and Gouden Akker Properties NV. The appeal was heard immediately prior to the commencement of the trial. The facts, so far as material to the appeal, are set out in the judgment. 6 February 2002. Newman J allowed the appeal for reasons to be given later. His Lordship then proceeded with the trial of the action. COUNSEL: Christopher Moger QC and Robert Howe for the claimants; Mark Cran QC and Neil Calver for the defendants. JUDGMENT-READ: Cur adv vult 25 March 2002. The following judgment was delivered. PANEL: NEWMAN J JUDGMENTBY-1: NEWMAN J JUDGMENT-1: NEWMAN J: [1] This is a debt action with a difference. It involves three characters: Roland Walter Rowland (now deceased), who was widely known and referred to as 'Tiny Rowland' (hereafter Mr Rowland), Dieter Bock, a wealthy and successful German businessman, who between 1992 and 1995, as joint chief executive with Mr Rowland of Lonrho plc and thereafter until Mr Rowland's death in 1998, was locked in battle over business differences with Mr Rowland, and Christian Norgren, a Swedish businessman, who by the time of the events with which this case is concerned had experienced major setbacks in his profession as a business executive and was operating as a consultant with a German bank as well as a middleman, or broker, for deals, when the opportunity arose. [2] The sum claimed is £250,000, alleged to be due as a flat fee pursuant to an agreement contained in a letter dated 16 September 1993 from Mr Norgren to Mr Bock, countersigned by Mr Bock on 22 September 1993. A few months before this date, namely on 17 June 1993, Mr Bock paid £50m to Mr Rowland to acquire a significant proportion of the issued share capital of Lonrho plc. Mr Norgren had introduced Mr Bock to Mr Rowland to facilitate this transaction and he received from Mr Bock a fee of £1.35m for these introductory services. At the material time Mr Bock had a 60% interest in a German company called Advanta Management AG (Advanta), valued by Mr Bock at approximately DM800m. There is no question that Mr Bock has, at all material times, been able to pay the amount of the debt without any significant adverse consequences at all. Nevertheless, he has resolutely refused to pay it. His resolution not to pay cannot be in doubt. On the date he terminated the agreement, namely 5 May 1994, he had, as he stated in evidence, no intention of paying, and his persistence and resolution not to pay is borne out by the series of defences which have been put forward in response to the claim. Only at the hands of Mr Cran QC for Mr Bock, and at the conclusion of the trial, were some of these defences abandoned. Not surprisingly, the claimants have categorised his conduct as dishonourable, being designed simply to avoid meeting his legal obligations and evincing a willingness to adopt any measure by way of excuse, whatever merit in fact or law it might have, if it could avoid him having to pay. It seems to me to be obvious that Mr Bock has attempted to put forward any excuse he possibly could, regardless of its merit, to defeat the claim. In the light of the last minute abandonment of some of the defences, Mr Cran could hardly submit to the contrary. Whereas in many cases conduct such as this might assist on issues of credibility, in this case, a full canvas, if such was painted, would, in my judgment, represent the Bock/Norgren dispute as a relatively small dot in the portrayal of the battle which was waged on many fronts between Mr Bock and Mr Rowland. [3] These proceedings have given rise to some feeling between Mr Bock and Mr Norgren. The case first came on for trial in June 1997. Mr Norgren attended the trial and whilst here was arrested on a warrant issued from Bow Street Magistrates' Court pursuant to a request for his extradition to the United States on an indictment alleging fraud in connection with insider dealing in the United States. He was held in custody until Mr Rowland stood surety for him and he obtained bail. He alleged that Mr Bock had instigated his arrest and therefore issued contempt proceedings against Mr Bock. The trial was adjourned as a result, and at a later date Mr Bock successfully contested the application to have him committed for contempt. If an alternative to this matter being resolved by a trial had ever existed, the contempt proceedings just have put an end to that possibility. Mr Norgren is still in jeopardy of being arrested upon a warrant should he return to the United Kingdom. Since his 1997 experience he has declined to do so. In order to give evidence in this case, he requested the master that he should have leave to give his evidence by way of a video link. The master refused. Garland J granted permission to appeal and ordered that the appeal should be heard prior to the commencement of the trial. Having heard argument on the appeal, I allowed the appeal and gave permission for Mr Norgren to give his evidence by way of video link, which he did. I shall give my reasons for having allowed the appeal. The appeal [4] CPR 52.11(3) provides: 'The appeal court will allow an appeal where the decision of the lower court was-(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.' The note in the White Book (Civil Procedure (Spring 2002)) vol 1, para 52.11.9 states: '(a) "wrong" presumably means that the court below (i) erred in law or (ii) erred in fact or (iii) erred (to the appropriate extent) in the exercise of its discretion.' In G v G [1985] 2 All ER 225 at 229, [1985] 1 WLR 647 at 652, Lord Fraser of Tullybelton observed: '. . . the appellate court should only interfere when it considers that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.' [5] CPR 32.3 provides: 'The court may allow a witness to give evidence through a video link or by other means.' The rule has to be seen as part of the procedure laid down for furthering the overriding objective. CPR 1.4(2)(k) envisages actively managing cases by making use of technology. Further, the overriding objective (r 1.1) of the code is to see that the court is enabled to do justice, which includes 'ensuring that the parties are on an equal footing'. [6] The master concluded that it would be unfair to Mr Bock to be cross- examined in court when the claimant would be cross-examined on video. Therefore he placed a 'very heavy burden' upon Mr Norgren to show that it 'is just for him not to attend trial and to give video link evidence instead'. The master recognised that Mr Norgren could not return to this country without the risk of arrest and the probability of having to face a further hearing in relation to the extradition proceedings. He expressed the content of his discretionary exercise to be -- 'whether the circumstances in which the claimant argues that he is in effect prevented from coming to this country should outweigh the disadvantages to the defendant of the inability to cross-examine the claimant in person.' That led to a critical conclusion by the master as to the quality of video link evidence and to the cases covered by the rule: 'It is a second class way of conducting a trial and, in my view, should only be ordered in cases where there is a pressing need for an order, for example, if a witness is too ill to attend in person. I say that in particular in this case when the witness is the claimant himself and his evidence will be crucial in determining the issues.' He regarded the extradition proceedings to be a separate matter and observed: 'So this is as good an opportunity as any for Mr Norgren to clear his name once and for all.' [7] Mr Moger QC submitted that the master: (1) asked the wrong question. He should have asked: 'What course secures the best prospect for a fair trial?'; (2) failed to pay any sufficient regard to the need to achieve an equal footing or, put another way, to have regard to art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) and the principle of 'equality of arms'; (3) unreasonably attempted to force Mr Norgren to come here, because he regarded the prospect of arrest as a means whereby Mr Norgren could clear his name, and as an insufficient reason to refuse to come here for the trial; (4) unreasonably concluded that there was such a difference between giving evidence by video link and giving evidence in person that to allow Mr Norgren to do the former and Mr Bock the latter, placed Mr Bock at a disadvantage. [8] Mr Cran submitted, relying upon the dicta of Lord Fraser, that the court should not intervene and that there was an essential difference between the two modes of receiving evidence. In that regard the master was correct. He relied, in particular, upon the time lag that enables a witness on video link more time to answer difficult questions. He emphasised that Mr Norgren was a fugitive from justice and the court should hesitate before deciding whether he should be granted the privilege of giving evidence by video link in order to further and continue his flight from justice. Further, he submitted that had Mr Norgren not commenced the contempt proceedings in 1997 the trial would have continued once he had been granted bail. Reasons for allowing the appeal [9] In my judgment the master: (1) failed to pay sufficient regard to the recognition accorded by the code to video link evidence. His conclusion that it should only be ordered in cases of 'pressing need', where a witness is 'too ill to attend', is too restrictive and conflicts with the broad and flexible purpose of the code which is directed to the objective of enabling the court to do justice. No defined limit or set of circumstances should be placed upon the discretionary exercise to permit video link evidence. A refusal to attend which could be characterised as an abuse or contemptuous, or which sought to obtain a collateral advantage, could be envisaged as putting the application beyond a favourable exercise of discretion, but CPR 1.1 and 1.4 envisage considerations of costs, time, inconvenience and so forth as being relevant considerations; (2) failed to pay sufficient regard to art 6 of the convention and the need to see that the parties were on an equal footing. Plainly whatever difference there may be between video link evidence and live evidence in court, the parties will be on a more equal footing than one party being present and cross-examined and the evidence of the other being confined to the reading of a statement pursuant to a Civil Evidence Act notice; (3) wrongly concluded that the discretion should be exercised so as to put pressure upon Mr Norgren to attend; (4) paid too little attention to the reason Mr Norgren had for objecting to come to England. In my judgment full access to the court for justice in a civil matter should not, save in exceptional circumstances, be at a price of the litigant losing his liberty and facing criminal proceedings; (5) underestimated the ability of the court to make due allowances for any technological consequences on the demeanour and delivery of the evidence by video link and failed to consider the advantage of a party being able to give live evidence. For the above reasons I allowed the appeal. For the record I should like to state that the facilities provided at the Bar Council gave rise to little time lag, a verisimilitude which was noteworthy and gave rise to no obvious disadvantage for Mr Cran. [In the remainder of the judgment, his Lordship reviewed the facts, the evidence and the legal submissions, rejected the various defences put forward by Mr Bock and accordingly gave judgment for the claimants.] DISPOSITION: Appeal allowed. Judgment for the claimants. SOLICITORS: CMS Cameron McKenna; Macfarlanes. |