Sheikh Mohamed Bin Issa Al Jaber v Sheikh Walkid Bin Ibrahim Al Ibrahim & Anor.

Permission to give evidence remotely should be determined by assessing whether remote evidence is likely to assist the efficient, fair and economic disposal of the proceedings.

Fairness is central. The court must weigh the disadvantages of remote cross-examination against the risk that a witness may otherwise be unable to give evidence at all. Where credibility and cross-examination are critical, remote evidence may still be appropriate if it provides a materially fairer means of securing the witness’s evidence. Protective conditions, including supervision at the remote location and a camera showing the whole room, may address concerns about the integrity of the process.

The defendants applied for permission to give evidence by video link from Saudi Arabia, asserting that they were subject to travel bans. The claimant challenged both the evidence of the alleged restrictions and the evidence concerning Saudi Arabian law.

The court accepted that the evidence did not establish a legal impediment under Saudi Arabian law. It nevertheless had to decide whether the application should be granted despite the defendants’ limited evidence, particularly because the claim involved serious allegations of dishonesty and the outcome was likely to depend substantially on cross-examination.

1. The court would not refuse the application on the ground that remote evidence from Saudi Arabia would contravene Saudi Arabian law. The evidence of an experienced Saudi Arabian lawyer was that Saudi law did not prohibit evidence being given to a foreign court by video link, and there was no contrary evidence.
2. The evidence supporting the alleged travel bans was threadbare. There was no documentary evidence of the bans, applications for permission to travel, or acknowledgements from the Saudi authorities. The court was therefore sceptical about the application.
3. Nevertheless, the governing consideration was whether remote evidence was likely to be beneficial to the efficient, fair and economic disposal of the proceedings, adopting the approach stated in Deutsche Bank AG v Sebastian Holdings [2022] EWHC 1555 (Comm).
4. Fairness required balancing the claimant’s interest in in-person cross-examination against the possibility that refusing the application would prevent the defendants from giving evidence altogether. The relevant comparison was between in-person and remote cross-examination, rather than between remote evidence and no evidence. Remote cross-examination was considered to be as effective, or nearly as effective, where interpreters were not involved, and the claimant could address evidential weight in submissions.
5. The possibility that the defendants might otherwise be unable to give evidence, in a high-value claim turning materially on allegations of dishonesty and credibility, was decisive. Permission was granted.
6. The order required a solicitor to be present throughout the defendants’ evidence and a 360-degree camera to show the whole room from which the evidence was given.

not stated in the judgment.