Polanski v Conde Nast Publications Ltd

CPR 32.3 gives the court a case-specific discretion whether to permit evidence by video-conference link. Where the application is made from abroad to avoid arrest or extradition, the court must consider all the circumstances, including the offence, the witness’s role, the relationship between the civil claim and the offence, alternative forums, and the disadvantages of remote evidence.

Video-conference evidence is an indulgence and departure from the normal requirement that witnesses attend in person. Refusing it does not deny access to justice where the claimant can attend court. A witness statement may also be excluded under CPR 32.1 if its maker refuses court-ordered cross-examination. A conditional attendance requirement may be a legitimate and proportionate restriction under Article 6.

Roman Polanski brought a libel claim against the publisher of an article in Vanity Fair. The claim was to be tried before Eady J and a jury. Polanski wished to give evidence by video-conference link from a Paris hotel because attending in London might expose him to arrest and extradition to the United States, where he had pleaded guilty to a serious offence and remained unsentenced.

Eady J made an order under CPR 32.3 permitting the evidence to be given by video link. The publisher appealed. The appeal concerned whether the order should have been made, and whether Polanski’s written statements could be admitted as hearsay if he refused to attend court for cross-examination.

1. Appeal allowed. The order permitting Polanski to give evidence by video-conference link was set aside. The Court of Appeal held that the issue involved questions of policy and principle and was not subject to the usual restraint applicable to case-management decisions.
2. CPR 32.3 contains no absolute rule governing applications by witnesses who wish to give evidence abroad to avoid arrest. The court must consider all the circumstances. The relevant considerations include the nature of the offence and whether there has been a conviction; the nature of the civil claim and its relationship to the offence; the witness’s role, with greater caution required for a claimant than for a defendant or non-party witness; the importance of the claim and the possibility of suing elsewhere; and the likely disadvantages of video-conference evidence.
3. Video-conference evidence is now generally satisfactory where there is a sufficient reason to depart from the normal rule that witnesses attend in person. It remains an indulgence. In a libel action before a jury, where character and credibility are central, the disadvantages of remote evidence may carry particular weight.
4. The court rejected the assumption that Polanski’s written statements would necessarily remain admissible. Under the Civil Evidence Act 1995, evidence is not excluded merely because it is hearsay. However, CPR 32.1 gives the court power to exclude a statement where its maker refuses to attend for cross-examination. CPR 33.4(1) permits the opposing party to seek such cross-examination, and the absence of an equivalent to CPR 32.7(2) at trial does not require the statement to be admitted.
5. Article 6 access rights are not absolute. A restriction pursuing a legitimate public aim must bear a reasonable relationship of proportionality to that aim. Requiring a claimant to attend court in person, so that the court does not facilitate evasion of criminal or extradition processes, was legitimate and proportionate. The respondent was not treated as an outlaw or denied access to justice; attendance was his choice.
6. The circumstances were decisive: Polanski was a convicted fugitive awaiting sentence, was invoking the jurisdiction as claimant for his own benefit, could potentially litigate elsewhere, and sued concerning conduct connected with the offence and his sexual reputation. Costs of the appeal were awarded to the appellants and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal was allowed on 28 October 2003. The direction permitting evidence by video link was set aside, with consequential directions concerning the use of written statements and cross-examination. The appellants received the costs of the appeal and permission to appeal to the House of Lords was refused.
2. High Court of Justice, Queen’s Bench Division: Eady J ordered on 9 October 2003 that the claimant could give evidence from Paris by video-conference link under CPR 32.3.