It has perhaps been too long now since the eruption of Covid-19 to make the comparison between what life was like was before and after the pandemic. Nonetheless, I find it a fitting place to start this article. One pandemic related change was the family court’s adoption of the Cloud Video Platform (CVP). The operation of the CVP enables witnesses to ‘attend’ court online, indeed, entire court hearings can be conducted online.
When it comes to the giving of oral evidence the optimum is often physical attendance.Subtleties may sometimes be lost over the airwaves, the chance for discussion with the witness is more restricted and the ‘feel’ of the room is lost for both the witness and counsel. Nonetheless, there is no appetite to go back to the pre-Covid days, the practical benefits of virtual attendance hardly needs explaining. One such benefit is that, if required, one can attend court virtually whilst they are overseas. However, if the attendee is a witness, the situation needs to be given a bit more thought. Can a witness give evidence from abroad via CVP? It’s not straightforward.
Guidance in the Civil Procedure Rules (CPR) for remote hearings can be found tucked away in Annex 3 of Practice Direction 32, and at paragraph 4, a warning can be found:
‘’It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales’’
This article zooms (if you pardon the pun) in on what the proper procedure is for obtaining permission for a witness to give evidence at court via CVP link whilst they are abroad.
Step 1: Obtaining permission from the English courts
The court has the power to control evidence and CPR 32.3 states that the court ‘may allow a witness to give evidence through a video link’. If you want a witness to give evidence from abroad it is therefore necessary to start this process by obtaining permission from the English court for the witness to give evidence via video from a location abroad.
This will take the form of a Part 18 application (usually a D11 or C2 application form)to the court. In this application, you should explain why your witness would need to give evidence abroad. As noted in paragraph 2 of Annex 3 (CPR PD32),having a witness give evidence via CVP is ‘not ideal’ and the court will have regard to the ‘efficient, fair and economic disposal of litigation’when determining whether it will permit a witness to give evidence from abroad.Nonetheless, the court will give permission in some scenarios, for example, if a hearing is listed by the court on a date that a witness or expert had already indicated they would not be available.
Step 2: Requesting permission from the relevant foreign central authority
If permission is granted for a witness to give evidence via CVP whilst overseas, the next step is to obtain permission from the foreign court for the location of the witness to be on foreign soil.
The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 dictates that a request for evidence must be sent from the English Central Authority to the relevant foreign central authority. In England and Wales, this can be done through the Foreign Process Section (FPS). An order granting permission has to be obtained from the English court first, so the process should be started in good time ahead of the hearing at which the evidence is to be given.
The request takes the form of the following documents:
Once these documents have been collated, they can be sent to the FPS. The FPS will then need to process and sign these documents before they can be sent to the foreign central authority.
Different jurisdictions have different requirements for granting permission and so it can be helpful to contact the FPS in advance of your application. By way of an example, the Spanish Central Authority does not permit oral evidence in foreign courts to be given from Spain and so only requests for written evidence to be submitted from Spain should be made. Similarly, whilst the French Central Authority can grant permission for oral evidence to be given from its soil, this can take up to 6 months to be processed. If you wanted to expedite the process, you would need to speak to the FPS where the staff are very helpful and efficient.
It is then a waiting game once these documents are sent to the relevant foreign government. In some cases, the central authority will request additional information or documents before determining if it will permit evidence being given from its jurisdiction.
Step 3: giving evidence from abroad
Hopefully,the central authority permits the request. Armed with this permission, your witness is now able to join the court hearing via CVP link and give evidence from abroad.
Clearly, giving evidence abroad is not as simple as joining a link from whatever location you are in. Practitioners should think twice about arrangements which require a witness to give evidence abroad. This application can be time consuming and, ultimately, permission can be refused. Nonetheless, it is always good to have this type of application in your back pocket if your witness cannot change their plans and will be abroad during a hearing at which you would like them to give evidence.
