ANITA JACKSON v HAYES & JARVIS (TRAVEL) LTD

The court’s discretion to permit evidence by video link requires a case-specific balancing exercise. Convenience and potential travel difficulties do not, without evidential support, justify departing from the default position that hearings take place in court. The court must consider fairness, efficiency, economy, the importance of the evidence, the safeguards available at the remote location and the degree of control over the witness. In a significant final trial, in-person evidence may assist the judge and advocates, particularly where witnesses will refer to documents, photographs or plans. An application based on assumptions about travel, health, visa or quarantine difficulties may be premature and should be refused where the risks are unsubstantiated.

The claimant brought a high-value personal injury claim arising from an accident at a Kenyan resort. Liability was disputed, and the defendant sought permission under CPR 32.3, or alternatively under the court’s case-management powers, for two witnesses based in Kenya to give evidence remotely at the liability trial.

The defendant relied on possible travel, vaccination, testing, visa, quarantine, employment and health difficulties. The claimant submitted that the interests of justice required live evidence in person. The issue was whether the evidence should be given remotely or at the Royal Courts of Justice.

1. The application was refused. CPR 32.3 permits the court to allow evidence through a video link or other means, consistently with CPR 1.4(2)(k), which permits the use of appropriate technology in furthering the overriding objective.

2. The guidance in Annexe 3 to CPD 32 recognises that video evidence may save time and costs, but is less ideal than physical attendance. Convenience must not dictate the decision. The court must assess in each case whether technology is likely to contribute to the efficient, fair and economic disposal of the litigation, including the more limited control that may be exercised over a remotely situated witness.

3. The default position remains that hearings should take place in court unless there are good reasons to the contrary. Decisions permitting video evidence are necessarily fact-specific. The existence of potential travel, health, visa or quarantine difficulties was insufficient here because there was no evidence that either witness had refused to attend or faced insurmountable difficulties. The application was therefore premature.

4. The court also weighed the significance and value of the final liability trial, the importance of the witnesses’ evidence and the absence of evidence that requiring personal attendance would jeopardise the trial. The evidence appeared likely to be easier to give and assess in person, especially when referring to photographs and plans, although remote evidence could in principle be given fairly.

5. The court noted the absence of information about the proposed location and safeguards for giving evidence in Kenya. Balancing the unsupported risks against the advantages of personal attendance, the application for remote or hybrid evidence was refused.