The Three Mile Inn Ltd & Ors v Dale

A party who is also a necessary witness has a legitimate interest in attending the civil trial. That interest is an aspect of the right to a fair trial under Article 6 and is relevant to the overriding objective.

Effective participation may require more than giving evidence remotely. It may include following the proceedings, hearing the other party’s evidence and consulting freely with legal advisers. A direction effectively requiring participation by video link must therefore have a good reason and serve a legitimate aim. When illness prevents attendance, the court must balance that interest against delay, prejudice, costs and effective case management.

The applicants sought the removal of the respondent as liquidator of a company. The High Court refused Mr Robertson’s application to adjourn the trial, despite medical advice that he should remain in Monaco because of a risk of haemorrhage. It instead directed that his evidence be taken by video link.

The Court of Appeal granted permission and immediately heard the appeal. The central issue was whether the judge had properly exercised his case-management discretion, having regard to Mr Robertson’s interest as both a party and a necessary witness in attending the trial, the possibility of remote participation and the prejudice caused by an adjournment.

1. Appeal allowed. The unchallenged medical evidence established that Mr Robertson was unfit to attend the trial and should remain in Monaco pending further treatment. By refusing an adjournment, the judge had effectively required him either to disregard that advice or to participate by video link.
2. A party who will also be a witness has a legitimate interest in attending the trial. That interest is an aspect of the right to a fair trial under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It must also be considered under the overriding objective, including the objective of keeping the parties, so far as practicable, on an equal footing.
3. The availability of a video link did not dispose of the issue. Effective participation may involve following developments, hearing the opposing evidence and consulting freely with counsel and other legal advisers. A direction effectively requiring remote participation is not necessarily incompatible with Article 6 or the overriding objective, but it must be made for a good reason and serve a legitimate aim.
4. The guidance in Annex 3 to the Practice Direction supplementing Part 32 of the Civil Procedure Rules 1998 required an assessment of whether video evidence would assist the efficient, fair and economic disposal of the litigation. Relevant matters included the court’s reduced control over a remote witness and uncertainty as to whether the foreign jurisdiction permitted evidence to be given to an English court by video link.
5. The judge had not considered Mr Robertson’s legitimate interest in attending. That omission concerned a significant matter in the required exercise of discretion. The respondent had shown no prejudice from an adjournment beyond delay and case-management concerns which could be addressed by costs. The balance of justice therefore favoured an adjournment. This was an unusual case in which appellate interference with a case-management decision was justified.

Aikens LJ agreed, emphasising that the decision depended on the particular position of a party who was also a necessary witness and on the specific facts of the case.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed. The refusal of an adjournment was overturned.
• High Court, Chancery Division: Mann J refused Mr Robertson’s application to adjourn the trial and directed that his evidence be taken by video link. No citation for that decision is stated.