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Witnesses to appear in person or via video-link?

Over the past two years we have seen more and more court hearings take place online as the courts adjusted the ways in which they operated to ensure that hearings could still take place during the pandemic.

Although many hearings have moved back to a physical court room, there are still hearings taking place in a hybrid form (partly in person, partly online).

A very recent case (Jackson v Hayes and Jarvis (Travel) Limited [2022] 1WLUK 321) has looked at what should happen where a trial is listed for a high value claim in circumstances where two of the Defendant’s witnesses lived abroad. The court took the view that the default position now is that hearings should take place in a physical court room and that the evidence in this case should be given in person.

The facts

The Defendant, a tour operator, had made an application to the court for two witnesses, a general manager and an architect, to give oral evidence at trial via video-link or via one of the court’s video platforms. This was on the basis that both witnesses resided in Kenya. The claim was a high value claim with damages estimated at £5m+. The Defendant’s arguments were:

  • It was not proportionate for the witnesses to fly 13 hours to give evidence;
  • There were health risks from Covid 19 and the testing rules;
  • It was inconvenient for them to travel and would involve a 10 day trip when there was a three day trial window.

The decision

The court noted that the guidance on the use of video conferencing makes it clear that giving evidence by video link was not as ideal as evidence being given in person. Whether or not physical attendance was “convenient” was not a valid consideration. In this case the witnesses would need to refer to photographs and building plans and it was felt that it would be easier for the judge and counsel if that was done in person. Further, given that there was no indication that the witnesses would refuse to attend in person or that it caused insurmountable difficulties the court took the view that the witnesses should attend in person.

Going forward?

Our view is that going forward the courts will make orders that evidence from witnesses should go back to being given in person, in a court room, rather than by video link. The higher the value of the claim the more likely it is that evidence will be ordered to be given in person.

For further information, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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