In another decision in the Kimathi -v- Foreign and Commonwealth Office  EWHC 3684 (QB) case Mr Justice Stewart considered the question of whether witnesses should attend court, use video link or whether depositions should be taken.
“the general rule is that witnesses give their evidence orally in public, this being subject to any order of the Court.”
- Witnesses who were, for health reasons, unable to travel from Kenya to attend a trial in England were permitted to give evidence by video link.
- Witnesses who were physically able to travel had to attend court to give evidence. On the facts of this case this being preferable to video link evidence or depositions taken abroad.
- The starting point for the consideration of these issues was the Overriding Objective.
- Video conferencing evidence was not ideal in every case and careful decisions have to be made as to whether it is appropriate.
This is a test case where a number of claimants are bringing actions against the government for their treatment in Kenya.
The issue was whether the claimants should attend England to give evidence at the trial.
THE STARTING POINT: THE OVERRIDING OBJECTIVE
I start with the Overriding Objective which according to CPR 1.1(1) is to “enable the court to deal with cases justly and at proportionate cost.” In Rule 1.1(2) is a list of factors which are included in how the Court should deal with a case justly and at proportionate cost. Further, the general rule is that witnesses give their evidence orally in public, this being subject to any order of the Court.
When reviewing the authorities in the March 2015 judgment I said that the decision in Barratt v Shaw and Ashton  EWCA Civ. 137, whilst decided in a particular context far away from the present case, “is an important reminder of the general rule in CPR 32.2(1)(a) that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public.”
“VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.”
THE WITNESSES WHO WERE UNABLE TO ATTEND TRIAL
There was a detailed consideration of the costs, benefits and disadvantages of video link evidence compared to the taking of depositions in Kenya.
(i) It is desirable that the Claimants give their evidence in person to the Judge. Video link evidence is not as ideal as having the witness physically present in Court.
(ii) Given the Claimants’ personal circumstances, an unfamiliar situation such as video link may possibly affect the cogency of their evidence.
(iii) In an ideal world it would be desirable for the normal trial process to take place within a court room. (The Claimants directed my attention to certain studies in their skeleton argument – though I was not taken to them in oral submissions – as to disadvantages in video link such as apparent reduction in sincerity of a witness, a reduced ability for the Decision Maker to engage emotionally with the witness.)
(iv) These disadvantages of video linking may be increased in circumstances where the witnesses are vulnerable (as here), need interpreters and do not have Intermediaries.
I accept points (i) – (iii) above. As to point (iv), I was taken to the medical evidence relating to some specific Claimants by way of example. Of the 16 who cannot travel to the UK, these were Njoki Kamau, Margaret Kimani and Gradys Muiruri. It was submitted that there is, for example, a risk of retriggering memories, and a decrease in the ability to monitor the need for intervention to assist vulnerable witnesses; also other matters were raised such as Gradys Muiruri’s evidence being of particular importance because of the lack of physical evidence to corroborate her account and Professor Fahy’s view that she “is a quietly spoken lady and would require prompting and guidance to engage effectively and audibly with video link technology”, adding she is likely to need rest breaks every 45 minutes or so. It is accepted that, in all these matters, there is no evidence from the doctors that the Claimants would be better or worse off giving live or video evidence. The Claimants’ case is that this is not a matter really for the doctors. They say it is self-evident and/or apparent from The Advocates Gateway Toolkit 18 where paragraphs 1, 21, 26 and 30 were specifically referred to. However, I do not regard these matters as self evident; nor do I see anything in Toolkit 18 to support these submissions. The only aspect which may be rendered more difficult, and the Court and parties should have a heightened awareness of it, is in monitoring the need for intervention to assist a vulnerable witness.
Returning to the Overriding Objective, the Court has to deal with the case justly and at proportionate cost. I have already said that the “proportionate cost” factors are of modest weight in this balancing exercise. Looking at the particular factors in CPR1.1(2) the important one in favour of the Claimants’ application is to ensure (so far as practicable) that the parties are on an equal footing and that the case is dealt with expeditiously and fairly. It is important to note firstly that the factors in Rule 1.1(2) are specific matters which are included in the requirements to deal with a case justly (and at proportionate cost) and secondly that they are qualified by the words “so far as is practicable”. Taking into account all the points which the Claimants have made, I have come to the clear conclusion in respect of those Claimants who cannot come to England that their evidence will have to be given by video link. I am not prepared to seek to impose real security risks and massive disruption on the lives of the professionals involved in the litigation, coupled with the practical considerations outlined in paragraphs 19 – 21 of Mr Murphy’s fourth statement. A fair trial is possible with video link evidence. In the light of the evidence, the Defendant’s counsel are entitled in my judgment to say that they would not be prepared to take the risks of travel to Kenya. I am afraid I regard the Claimants’ submission that the Defendant’s lawyers can stay in England when the Court, the Claimants’ lawyers and the witnesses are in Kenya, to be misplaced. That would be much less likely to achieve a fair trial than video link evidence.
There was a dispute as to whether certain claimants were able to travel.
In relation to those capable of travel to England it was held that they should travel and attend at the trial.
In relation to those where there was disagreement about fitness to travel it was held that they could give evidence by video link if they preferred.
In relation to those who were medically fit to travel but expressed a wish to stay in Nairobi it was held that they should travel to England to give evidence.