Witnesses should attend trial in person (even if they live a 13-hour flight away)

Speedread and practical tips

Two decisions in the Commercial Court last week make it crystal clear that the court expects witnesses to attend trial in person unless there's a good reason for them not to - and the court sees this as the default position. This might be a bit jarring for litigators and their clients given that hybrid working practices are now the new normal but the court hath spoken.

So if you are litigating in the Commercial Court - and I'd suggest any division of the High Court - and you have foreign witnesses, there's a good chance your witnesses will need to fly to the UK to give evidence, come what may. You should therefore manage client and witness expectations on this from an early stage. Despite the clickbait-y title of this post, if you do have a recalcitrant witness who doesn't want to (or refuses to) attend trial in person though, then your best bet to try and get a remote or hybrid hearing will be: (i) to explain in a witness statement, ideally from your witness, why your witness can't or won't attend - and with reasons ideally relating to their health and more convincing than "it's not convenient", since a 13-hour flight from Kenya didn't get the defendant's witnesses in Jackson over the line; and (ii) to explain to the court in detail the logistics of how your witnesses will give evidence remotely from wherever they are, if that is permitted.

The cases

In United Technology Holdings Ltd v Chaffe [2022] EWHC 151 (Comm), decided on 24 January 2022, the court was asked to determine whether an application to strike out should take place remotely or in person. In a letter to the court, the claimants argued that the application should be heard remotely because they were litigants in person who did not live in the jurisdiction and travelling to England during the COVID-19 pandemic was "unpredictable or impossible". The court was less than impressed, finding that no evidence had been provided that travelling to England was actually unpredictable or impossible and that the default position was now that hearings should take place in court unless there were good reasons to the contrary relating to health to hold them remotely. Paragraph 8 of the decision is instructive and reads, in full, as follows:

"There are two other points which need to be made, I think.  First, the default position in respect of any hearing which is due to last longer than half a day is that it should take place in court, unless there are good health‑related reasons to the contrary.  No health‑related reasons have been identified and the default position is that therefore this hearing, which is estimated for a day in length, should take place in court.  Secondly, before the pandemic engulfed the world it was never thought to be an appropriate way to proceed for hearings to take place remotely simply to suit the convenience of one of the parties.  The claimants in these proceedings have sought to litigate in England.  They have, I think, given addresses for service in their claim forms in England.  In those circumstances, I see no reason why the court should adopt an entirely novel approach to the determination of its business by directing remote hearings simply to suit the convenience of a party who has chosen to litigate in England but is unwilling to travel here."

In a similar vein, in Jackson v Hayes and Jarvis (Travel) Ltd [2022] EWHC 453 (QB), decided on 27 January 2022, the court refused permission for a defendant's witnesses, who lived in Kenya, to give oral evidence at trial via a video-link. In that case:

• The defendant was a tour operator and had organised a package holiday for the claimant at a resort in Kenya. While there, the claimant suffered an accident at the hotel, resulting in life-changing injuries. She issued a claim against the tour operator.
• The liability trial was to commence on 3 February 2022. The defendant wanted to call the hotel manager as a witness as well as a Kenyan architect to give expert evidence on the applicable local health and safety requirements and the standard of care expected of a reasonable local hotelier.
• The defendant applied to have the trial conducted as a hybrid hearing, with its witnesses attending remotely. It argued that it was not proportionate, or in the interests of justice, for them to travel from Kenya - a 13-hour flight - given the health risks of international travel during the ongoing COVID-19 pandemic and the current testing rules on arrival in the UK. The defendant also argued it would be "inconvenient" for them, because they would need to arrive in the UK on 2 February but potentially not leave until 10 February.

The court refused the application. Although it was possible for the court to permit witnesses to give evidence remotely, the guidance in Annex 3 to CPR 32, on the use of video conferencing in civil proceedings, stated that evidence by video link was not as ideal as having the witness physically present in court and its use was not to be dictated by considerations of convenience. The court also applied United Technology Holdings Ltd v Chaffe (above) and emphasised that the default position was now that hearings should take place in court in the absence of good reasons to the contrary.

The court accepted it would be inconvenient to fly to the UK but there was no evidence that the witnesses would refuse to attend the trial in person, or that they would face unsurmountable difficulties if they were required to attend. What's more, there was no evidence that the trial date would be jeopardised if the witnesses did have to attend and, since the witnesses would be referring to photographs and plans, it would be easier for counsel and the judge if that evidence was given in person. Lastly, the defendant had given no information to the court about how the witnesses would give evidence in Kenya if they were permitted anyway.