Mobile Telecommunications Company KSCP v HRH Prince Hussam Bin Saud Bin Abdulaziz Al Saud

The decision whether witnesses may give evidence remotely is a case-management discretion. Permission should be granted only where there is good reason and a legitimate aim, having regard to fairness, efficiency, cost, witness control, venue, technology and safeguards. Convenience alone carries little weight.

A litigant facing arrest or imprisonment may nevertheless be permitted to give evidence remotely where insisting on attendance would create a real risk of an unfair trial. The court must balance that risk against the disadvantages of remote evidence. The approach is witness-specific: health may justify remote attendance, while ordinary official or family commitments ordinarily will not.

The petitioner sought the debtor’s bankruptcy on the basis of an arbitral award. The hearing concerned procedural arrangements for a five-day bankruptcy trial, including whether the debtor and two non-party witnesses should give evidence remotely from Saudi Arabia.

The debtor relied on the risk of arrest under an outstanding committal order, the need for permission to leave Saudi Arabia and Article 6 of the European Convention on Human Rights. Princess Noorah relied on age and ill-health. Princess Sarah relied on official and family commitments. The central issue was whether the interests of a fair, efficient and properly controlled trial justified remote attendance for each witness.

1. General discretion. The decision whether to permit remote evidence is a case-management discretion. The court should grant permission only where there is good reason and a legitimate aim. It should consider Annex 3 to Practice Direction 32, including the reduced control over a remote witness and the need for appropriate venue, technology and safeguards. Convenience should carry little weight.
2. Effect of the risk of imprisonment. A litigant’s status as a fugitive or person facing imprisonment does not automatically prevent enforcement of civil rights. Following the approach in Polanski, insisting on physical attendance may be inappropriate where the litigant would realistically fail to attend and exclusion of oral evidence would create a real risk of an unfair trial. The court balanced that risk against the disadvantages of remote attendance and allowed the debtor to give evidence remotely.
3. Committal and purging contempt. The coercive and penal elements of committal must be distinguished. Only the coercive element may be remitted. Even if contempt could be purged, the debtor could not be assured before trial that the penal risk of imprisonment would disappear. That risk therefore remained relevant to the Article 6 and case-management assessment.
4. Individual witnesses. Princess Noorah was permitted to appear remotely because the medical evidence from the physician who examined her established that the health risks and likely discomfort outweighed the desirability of personal attendance. Princess Sarah was required to attend in person: official commitments, a remote board meeting and ordinary family responsibilities did not outweigh the desirability of attendance.
5. Remote evidence was subject to appropriate safeguards, with backup arrangements to be made. Translators were to remain in court rather than with witnesses in Saudi Arabia, to assist the court’s control of the proceedings. Costs were left for written submissions.