Polanski (Appellant) v. Condé Nast Publications Limited (Respondents)

A fugitive from justice remains entitled to invoke the civil jurisdiction of the English courts. Under rule 32.3 of the Civil Procedure Rules 1998, unwillingness to enter the United Kingdom because of the risk of arrest and extradition is a valid reason, and may be a sufficient reason, for permitting evidence by video link.

The discretion requires an overall and proportionate assessment of justice, including fairness between the parties and whether the order would affect the criminal process. Refusal should not be used merely to penalise fugitive status.

Relevant hearsay is not automatically excluded because its maker fails to attend for cross-examination. Exclusion under the court’s case-management powers is exceptional; ordinarily, the absence of cross-examination affects weight.

Polanski v Condé Nast Publications Ltd concerned a libel claim arising from an article in Vanity Fair describing the appellant’s alleged conduct in a New York restaurant shortly after his wife’s murder. The appellant denied the account. His evidence was central to the anticipated trial.

The appellant lived in France and was a fugitive from Californian criminal proceedings. He would not enter the United Kingdom because he risked arrest and extradition. Eady J therefore permitted him to give evidence from France by video link under rule 32.3 of the Civil Procedure Rules 1998.

The Court of Appeal unanimously discharged that order in [2003] EWCA Civ 1573, reported at [2004] 1 WLR 387. The issue before the House was whether permitting video-link evidence for that reason would bring the administration of justice into disrepute.

1. Appeal allowed by a majority of three to two; Eady J’s order restored. Lord Nicholls delivered the leading speech. Lord Hope and Baroness Hale agreed that the appellant could give evidence from France by video link. Lord Slynn and Lord Carswell dissented.

2. Per Lord Nicholls, a fugitive from justice is not precluded from enforcing civil rights in England. English law contains no principle of fugitive disentitlement. Denying all practical means of enforcing those rights would allow the fugitive’s property, reputation and other rights to be infringed with impunity.

3. Per Lord Nicholls, rule 32.3 of the Civil Procedure Rules 1998 expressly authorises evidence by video link. The facility is part of the court’s ordinary procedural powers and is not an indulgence. As a general rule, a claimant’s unwillingness to enter the country because of fugitive status is a valid reason and can be sufficient for making such an order.

   The discretion remains sensitive to the circumstances. The court must assess fairness, efficiency, prejudice and the public interest proportionately. Here, video-link evidence would not assist or impede the appellant’s continued evasion because he would remain in France whatever the court decided. Refusal would instead handicap the libel claim and confer an unjustified advantage on the respondent.

4. Lord Hope regarded the absence of any effect upon the criminal process as critical. Refusing the order would only impair access to justice. Baroness Hale added that the legal analysis should not depend upon whether the civil right concerned was reputation, bodily integrity or property. She accepted that an exceptional case might present so great an affront to the public conscience that the reason would be insufficient, but this was not such a case.

5. On hearsay, Lord Nicholls, Lord Hope and Baroness Hale concluded, obiter, that the Court of Appeal had gone too far in saying that the appellant’s statements would necessarily be excluded if he did not attend in person. Section 1(1) of the Civil Evidence Act 1995 makes relevant hearsay admissible. Rule 32.1 permits exclusion through case management, but exclusion for non-attendance is not automatic and should occur only where justice exceptionally requires it. Ordinarily, the absence of cross-examination affects weight.

6. Lord Slynn and Lord Carswell would have dismissed the appeal. They considered that public policy should ordinarily preclude a claimant from obtaining a video-link order where its sole purpose was to avoid arrest, extradition or sentence, absent compelling countervailing circumstances. They also considered that refusal would be a proportionate limitation upon access to a court under article 6 of the European Convention on Human Rights.

1. House of Lords: By a majority of three to two, allowed the appeal in Polanski v Condé Nast Publications Ltd [2005] UKHL 10 and restored Eady J’s order permitting video-link evidence.
2. Court of Appeal: In [2003] EWCA Civ 1573, reported at [2004] 1 WLR 387, unanimously discharged Eady J’s order. It held that permitting the appellant to avoid the ordinary processes of criminal justice would undermine public policy.
3. High Court: On 9 October 2003, Eady J directed under rule 32.3 of the Civil Procedure Rules 1998 that the appellant could give evidence from France by video link.