Polanski v. Condé Nast Publications Ltd

The House of Lords allowed the appeal and restored the judge's interlocutory order permitting the claimant to give his oral evidence by video conferencing pursuant to CPR r 32.3. The court held that a general rule should be identified: a claimant's unwillingness to attend court because he is a fugitive from justice is not in itself a reason to refuse a video-conferencing order. The court balanced competing public policy considerations — the interest in not facilitating a fugitive's evasion of criminal justice and the interest in enabling access to civil justice — and concluded that, where the claimant is beyond the reach of extradition, refusing the order would merely deny access to justice without assisting the criminal process. The Civil Evidence Act 1995 and the Civil Procedure Rules (in particular Part 32 and r 32.3) govern the admissibility and procedure for hearsay and remote evidence; exclusion of hearsay statements merely because the maker does not attend for cross-examination should not be automatic and is a matter for case management and assessment of weight.

The claimant, Roman Polanski, sued Condé Nast for libel arising from an article in Vanity Fair (July 2002). The trial of the action had not yet taken place; issues to be tried included meaning, justification and damages. Polanski, a French resident who fled the United States after pleading guilty in 1977 to unlawful sexual intercourse with a 13-year-old, stated he would not come to the United Kingdom for fear of arrest and extradition. He applied for a pre-trial direction to give his evidence from France by video link under CPR r 32.3.

The interlocutory history was: Eady J granted the video-conference direction (9 October 2003); the Court of Appeal (Simon Brown, Jonathan Parker and Thomas LJJ) discharged that order ([2003] EWCA Civ 1573; reported [2004] 1 WLR 387), emphasising public policy against facilitating fugitives and indicating that hearsay statements might be excluded if the maker would not attend for cross-examination; the claimant appealed to the House of Lords.

The House considered three possible legal positions: (1) a fugitive's unwillingness to return is generally a valid reason for a VCF order; (2) it is not; or (3) there is no general rule. The court rejected uncertainty and adopted the general rule that the claimant's unwillingness to return because he is beyond reach of extradition is not, in itself, a sufficient reason to refuse a VCF order. The Lords reasoned that where granting or refusing the order will not affect the claimant's fugitive status or the prospects of extradition, denying the procedural facility would arbitrarily deny access to justice. The court also addressed the status of hearsay under the Civil Evidence Act 1995, holding that admissibility should not be automatically defeated by the maker's absence for cross-examination and that exclusion is a case management matter governed by the overriding objective.

The House therefore restored the judge's order permitting evidence by video link, while noting that facts about the claimant's status should be disclosed to the jury and that exceptional cases might justify a different result.

Appeal allowed. The House held that, as a general rule, a claimant's unwillingness to come to the jurisdiction because he is a fugitive from justice is not in itself a valid reason to refuse an order under CPR r 32.3 permitting evidence by video link where the claimant is beyond the reach of extradition; denying the order in such circumstances would arbitrarily deny access to civil justice without furthering the criminal process. The court also held that hearsay statements should not be excluded automatically where the maker does not attend for cross-examination; admissibility and weight are matters for the court under the Civil Evidence Act 1995 and the CPR.

Interlocutory order made by Eady J (9 October 2003) permitting video-link evidence; order set aside by the Court of Appeal [2003] EWCA Civ 1573 (reported [2004] 1 WLR 387); appeal to the House of Lords allowed [2005] UKHL 10, restoring Eady J's order.