Deutsche Bank AG v Sebastian Holdings, Inc & Anor

Permission for a witness to give evidence by video link under CPR 32.3 requires a good reason serving a legitimate aim. Convenience, efficiency and cost savings will generally carry limited weight. Video evidence should not be allowed to dictate case management where physical attendance would better secure effective judicial control and the fair testing of evidence.

These considerations have particular force where the witness is a proven contemnor, has previously given dishonest evidence, and must attend an examination imposed as a coercive condition of a suspended committal order. In such circumstances, the court may require attendance in person under its case management powers.

Deutsche Bank AG sought directions concerning the attendance of Mr Alexander Vik at a further examination concerning the means of Sebastian Holdings, Inc to pay a substantial judgment debt. The examination formed part of the conditions on which a custodial committal sentence for contempt had been suspended.

Mr Vik applied under CPR 32.3 for permission to give evidence by video link from Connecticut. Deutsche Bank applied under CPR 3.1(2)(c) for an order requiring personal attendance. The central issues were the meaning of the committal order and whether Mr Vik had shown a good reason, serving a legitimate aim, for remote evidence.

1. Disposition. Mr Vik’s application for permission to give evidence by video link was dismissed. The bank’s application for an order requiring attendance in person also succeeded, although it was technically academic once the video-link application had been dismissed.
2. The committal order required Mr Vik to comply with its terms, including attendance at court for further examination. The wording was mandatory. Attendance in person was the proper interpretation, having regard to the coercive purpose of the suspended custodial sentence and the need to secure compliance.
3. Under CPR 32.3, permission for video-link evidence requires a good reason and must serve a legitimate aim. The court also had to apply Annex 3 to Practice Direction 32. Video conferencing is not as ideal as physical attendance, and the court’s control over a witness at a remote site may be more limited.
4. No good reason was established. The proposed medical procedure, childcare responsibilities, business meetings, cost savings and environmental concerns were either inadequately evidenced, capable of being accommodated, or matters of convenience. Convenience should not dictate the use of remote evidence.
5. The circumstances materially strengthened the case for personal attendance. Mr Vik was an admitted contemnor whose evidence had repeatedly been found dishonest. Effective questioning and the court’s control over the evidence were therefore especially important. The risks of technological failure, delay and overlapping questions provided additional reasons for requiring physical attendance.
6. Polanski v Conde Nast Publications Ltd was distinguishable. Requiring Mr Vik to attend did not deny him access to justice. The further examination was a compulsory information-gathering exercise, not a hearing at which he was vindicating or defending a civil claim.