Witness protection: exercising prudence with foreign video evidence

The SARS-Cov-2 pandemic has had a lasting impact on how litigation is conducted. This has included the sudden proliferation of the use of video technology in the Isle of Man Courts of Justice. Whilst this technology was already both available and able to be sanctioned for use (since at least August 2009 in civil proceedings), awareness of and experience with its use increased dramatically during the pandemic.

In Isle of Man litigation involving parties from around the globe, video technology can be a great resource, particularly in the taking of evidence virtually before the Isle of Man court. However, such expediency brings with it a need to have respect for the sovereignty of nations.

In this article, litigation advocate Andrew Langan-Newton explores the consequences that have arisen as a result of the increased use of video technology in obtaining foreign evidence.

Virtually giving evidence before the Isle of Man High Court

Isle of Man civil litigation is governed by the Isle of Man Rules of the High Court of Justice 2009 (“the Isle of Man Court Rules”), bearing similarities with the Civil Procedure Rules 1998 (“CPR”) of England & Wales. In accordance with Rule 8.3 of the Isle of Man Court Rules, the Isle of Man High Court may order that a witness is allowed to give evidence through a video link or by other means.

The use of video evidence in Isle of Man litigation can be of great convenience and is much more cost-effective when witnesses are based far around the globe. With such utility, excuses for not giving evidence such as the inability to travel to the Isle of Man can be challenged. This was the case in the Isle of Man appeal judgment of Hermitage v Heda. In that case, the appeal court considered that a Deemster would have been justified in placing no weight on a witness statement where (amongst other relevant grounds) there was no legitimate reason for a witness to fail to attend by video link for cross-examination.

Comity and sovereignty in taking foreign evidence

In the United Kingdom’s Upper Tribunal (Immigration and Asylum) judgment in Agbabiaka, it was explained that “there has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so.” 

Such an understanding has been further strengthened by international treaties such as the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matter, which the United Kingdom extended to the Isle of Man in 1980. Under Article 17 of the Hague Convention, the Isle of Man court may take evidence (via video link) from a witness in a contracting jurisdiction where a competent authority in that jurisdiction has given permission.

An illustration of the court’s respect for the sovereignty of foreign nations can be found in the England & Wales High Court judgment Interdigital Technology v Lenovo. In that case the claimant was arguing that German law would not prevent the giving of video evidence from Germany in the England & Wales court. Upon competing evidence, the judge agreed with the defendant that permission would be required from the German court on the basis that:

“There was a real risk that if the instant court were to give permission for oral evidence to be obtained by video from Germany without the permission of the German court, it would lead to a breach of German law […]. Accordingly, the claimants had permission for M’s evidence to be given by video from Germany, provided the competent authority in Germany first gave permission.”

Whilst the taking of video evidence from abroad (without sanction) may be a violation of foreign law, it does not automatically mean that it would be a breach of the domestic law of the Isle of Man. The England & Wales Court of Appeal in Raza v Secretary of State noted that the authorities did not suggest that the taking of video evidence from abroad without the permission of the state concerned is unlawful as a matter of domestic law, or that it would make the hearing a nullity. Rather, the issue is at a diplomatic level. This was summarised in Agbabiaka as:

“Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s diplomatic relations with other States and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent cases, where evidence needs to be taken from within that State.”

It was indicated by the Court of Appeal in Raza that where there was evidence from the foreign jurisdiction that it was not unlawful for evidence to be given via video link in foreign proceedings, specific approval may not be required from the courts of the foreign jurisdiction. This may be compared with the circumstances in Lenovo, where there was conflicting evidence as to the lawfulness under German law.

Precaution and expedition

As a consequence, in litigation before the Isle of Man High court which may require evidence to be obtained via video link from a foreign state (particularly if this state is not a territory of the United Kingdom), it would be prudent to obtain legal advice from a lawyer in the foreign state as to the lawfulness of the deposition of witness evidence via video link before the Isle of Man court. Equally, this would be the case if a litigant in person is proposing to represent themselves from a foreign state in a video hearing before the Isle of Man High court.

It would be wise to take a proactive and prompt approach to such matters. A note of caution can be found in the England & Wales High Court judgment in Illumina Cambridge Ltd v Latvia MGI Tech:

“The defendants’ legal teams left it far too late to make these arrangements and it was only with the assistance and cooperation of those authorities (and the efficiency of the Masters of the Queen’s Bench Division) that the arrangements were made in time.”

If you have any questions on the issues raised in this article, please contact Andrew Langan-Newton.