Skatteforvaltningen v Solo Capital Partners LLP & Ors

A trial judge should be cautious before interrupting a trial to act as a special examiner abroad. The proposed procedure raises unresolved questions about the scope of the deposition rules and the judge’s constitutional position when acting outside the jurisdiction.

Whether the procedure is available, its suitability must be assessed by comparing its practical advantages with the effects on open justice, equality between parties, the judge’s ability to control the evidence and the administration of other judicial business. Where the supposed gain from in-person observation is marginal, remote evidence given at trial may better serve the interests of justice.

The judgment concerned a pre-trial application by defendants resident in Dubai in consolidated civil fraud proceedings. The defendants were unable or unwilling to travel to London because of European Arrest Warrants and, in one case, a Dubai travel ban.

They sought an adjournment of the trial timetable and an order appointing the trial judge as a special examiner under CPR 34.13(4), so that their evidence could be taken by deposition in Dubai and a record later used at trial. The central questions were whether that procedure was available in principle and, if so, whether it would serve the interests of justice.

1. Application refused. The disadvantages of taking the defendants’ evidence abroad before a special examiner outweighed the supposed advantages by a clear margin.
2. CPR 32.2 establishes oral evidence in public at trial as the general rule, subject to the Rules or a court order. CPR 32.1 permits the court to control the way evidence is placed before it. CPR 34.13 applies where a party wishes to take a deposition from a person out of the jurisdiction, and CPR 34.13(4) permits appointment of a special examiner where the foreign government allows such examination.
3. The authorities had not rigorously tested whether a trial judge could appoint themselves as special examiner and interrupt an ongoing trial to take evidence abroad. The judge therefore entertained real doubt on the point and would have required full argument before following the existing approach.
4. On the merits, the proposed procedure did not offer a sufficiently material improvement in evidential quality. The defendants’ evidence concerned explanations of their involvement and state of mind, rather than primarily unknown physical facts or demeanour. High-quality remote evidence at trial was capable of capturing the relevant material.
5. The overseas deposition would materially impair open justice and equality between parties. Parties attending remotely would not share the same position as those present in Dubai, and the judge could not exercise the ordinary powers of a trial judge to control or clarify the examination. The judge would also be unavailable for trial management and other judicial work.
6. The application was accordingly refused. No final determination was required on the underlying power to appoint a trial judge as special examiner.