Old Park Capital Maestro Fund Limited v Old Park Capital Limited & Ors.

Remote evidence from overseas may be permitted where the witness’s evidence is not shown to require attendance in person and practical difficulties can be managed. Permission may be made conditional on compliance with the law of the jurisdiction from which evidence is given. In determining the time for providing agreed security for costs, the court may take account of the procedural history, the parties’ established understanding, the practical route by which funds must be transferred, and the time previously allowed for comparable payments.

During a pretrial review in proceedings brought by a company in liquidation, the court determined arrangements for three claimant witnesses located overseas and the timing of the final tranche of agreed security for costs.

There was no objection to evidence being given remotely from New York. Evidence from Switzerland raised potential issues under Swiss law. The claimant also sought permission for a former non-executive director to give evidence remotely from the Cayman Islands because of other commitments there. The parties agreed in principle the amount of final security, but disagreed whether it should be provided within seven days or by 9 May 2023.

1. Overseas witnesses. Permission was granted in principle for Mr Collin to give evidence remotely from Switzerland, subject to further investigation and wording ensuring that no person would be placed in breach of Swiss law. The court recognised the proposed alternative of giving evidence from France, but did not make that the required arrangement.
2. Ms Ludgate was permitted to give evidence remotely from New York without dispute. Mr Burt was permitted to give evidence remotely from the Cayman Islands. Although he was a former non-executive director and was expected to be cross-examined for about half a day, the pleadings did not show that the parties had sufficiently joined issue on matters requiring his evidence to be heard in person. Technical difficulties could arise with video evidence, but could also arise when witnesses attended court.
3. Security for costs. The final amount of security, approximately £190,000, had been agreed in principle. The appropriate time for payment was fourteen days from the hearing, namely 3 May 2023. The court rejected the submission that no application had been made, since the issue had been raised in correspondence during the pretrial review and there was an established understanding that security for the final phase would be provided. The period to 3 May allowed ample time for funds to pass through the relevant payment route, including the Court Funds Office, taking account of previous periods of about fourteen days.
4. The claimant liquidator remained responsible for providing the security if it wished to pursue the proceedings, notwithstanding the asserted lack of control over the person funding them.