The Remote Witness

In the current economic climate, it has become increasingly common for people to move abroad in search of work. Similarly, it is not unusual for many to take a “gap year” to travel the world in search of adventure. If that person was a party to, or a witness, involved in a legal process that can cause a real headache for the practitioners and the Court.

It is not unusual to have multiple adjournments and the fading memory of witnesses can greatly affect the outcome.

We encountered this issue in the recent case of Flanagan v Britvic (NI) PLC, Irvine and Mitsui Sumitomo Insurance . The Plaintiff had emigrated to Australia before her case could be completed. The Defendants’ representatives were adamant that the case should not progress without the physical attendance of the Plaintiff and the case was in danger of being struck out as the Plaintiff had no plans to return to Northern Ireland.

An appeal to the High Court was made by the Plaintiff’s then solicitors to allow for her evidence to be heard by alternative means. This application was successful with Mr Justice McCloskey indicating in his judgment

[1] that the evidence could be given by secure video link. The learned Judge acknowledged that this mechanism is increasingly commonplace in modern litigation. He identified two primary virtues; firstly it saves expense and secondly it can be deployed to avoid delay. Mr Justice McCloskey went on to establish a number of requirements, including:

  1. The Plaintiff will testify, under oath, in an isolated room unaccompanied.
  2. The trial judge must be satisfied about the quality of the video conference link.
  3. The Plaintiff will be “in attendance” throughout the trial and will be incommunicado from beginning to end.
  4. The Plaintiff will be strictly bound by all procedural and practical directions given by the trial judge.

The Plaintiff’s then solicitors were unable to find a secure video link service that would meet those requirements without incurring prohibitively high costs. Again the matter appeared to be doomed.

At this time we were instructed by the Plaintiff to represent her and received papers from her previous solicitors some three days before the Hearing date set by the County Court Judge.

The following day we were granted, despite opposition from the Defendants’ representatives, an adjournment of one week to prepare the case.

We decided we would seek to have the Plaintiff give her evidence by way of a Skype link. We were aware that Skype had been used on many occasions in the family courts where one or more parties lived outside the jurisdiction and we were mindful of dicta from learned members of the judiciary, not least Mr Justice Gillen as he then was, that Skype could be used as a means for a witness to give evidence.

We were however, conscious of the potential hazards in using this technology. For example, there have been cases where the quality of the Skype connection has been unsatisfactory[2] and Skype is not the most “secure” means of establishing a connection, rendering it potentially vulnerable to disruption.[3]

With these concerns in mind we felt it prudent to engage an IT professional with experience of establishing a link to facilitate court proceedings. To this end we engaged Mr Brian McElvanna of Newry Computer Centre as he had extensive experience, over several years, of setting up Skype calls with witnesses in the family courts.

Two days later we applied for an Order, pursuant to Order 24 Rule 2(2) of the County Court Rules (Northern Ireland) 1981, that the Plaintiff could give her evidence by way of a Skype link. We included in this application a provision that Newry Computer Centre facilitate this Skype link and that the case be heard in a Court room with sufficient mobile telephone, wireless network or “3G network” signal to facilitate the Skype link.

These latter provisions were necessary as, although the venue, Newtownards County Court, has broadband facilities, we had been advised by NI Courts and Tribunals Service staff that we would not be permitted to avail of same. Therefore, the only means of establishing the Skype link was via a “dongle”.

This application was also contested by the Defendants’ representatives. However, His Honour Judge Grant was persuaded that the proposal represented a cost effective and reliable way to progress the case to conclusion. His Honour further acknowledged that certain rooms within Newtownards County Court building may have a stronger 3G signal than others and granted flexibility as to the venue within the building.

A few days before the Hearing we successfully tested the Skype link in the Court building in Newtownards. Court Service staff were extremely accommodating in this regard, granting us access to several Court rooms until we were satisfied with the integrity of the Skype connection.

On the day of Hearing all went according to plan: Brian established a strong Skype link with the Plaintiff in Australia. Moreover, he set up an additional screen for the assistance of the Court. The Plaintiff gave her evidence clearly and to the satisfaction of the Judge, resulting in an award in the Plaintiff’s favour of over £9,000.00, including special damages.

Some commentators have questioned whether or not it will become routine for witnesses to give evidence remotely or by video link.[4] Indeed, a recent initiative in Australia saw certain witnesses giving evidence in criminal trials via their smartphones or tablets.[5]Whilst we do not think that it will suddenly become the norm that evidence is given by video link or Skype it is certainly something that in the modern age could become more prevalent, especially for expert witnesses who often spend many unproductive hours waiting in Court to give evidence.

It is therefore vital that we, as practitioners, are mindful of the benefits of embracing new technologies. The amendment to Order 24 rule 2 to include reference to video link is a welcome acknowledgement of this and a potentially vital addition to a civil litigator’s arsenal in this jurisdiction.

[1] Ref MCCL8928 delivered 28/06/13

[2] For example see the case of D and E (Undisclosed Libyan Properties) [2013] NIMaster13 wherein Master Bell commented at para 37: “…the Skype connection was sometimes of a poor quality that hindered the interpreter’s task of translating the experts’ evidence.”

[3] See for example the well publicised murder trial of George Zimmerman in the USA when the evidence of a witness being given via Skype was interrupted by other parties Skype-calling the witness. http://www.cnet.com/uk/news/zimmerman-trial-disrupted-by-contemptuous-skype-callers/

[4] Frederic Lederer The Legality and Practicality of Remote Witness Testimony” The Practical Litigator September 2009 pp19 – 30. Available at: http://www.legaltechcenter.net/download/articles/The%20Legality%20And%20Practicality%20Of%20Remote%20%20Witness%20Testimony.pdf

[5] “Witnesses allowed to testify via Skype in some trials” Sydney Morning Herald 10th June 2014 http://www.smh.com.au/nsw/witnesses-allowed-to-testify-via-skype-in-some-trials-20140609-39t7x.html#ixzz3I5tCwRLc

By | 2017-05-12T11:16:15+00:00 July 23rd, 2015|Uncategorized|0 Comments

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