Judgments - Polanski (Appellant) v. Conde Nast Publications Limited (Respondents)

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    75.  The 1995 Act was the result of the recommendations of the Law Commission in their Report on the Hearsay Rule in Civil Proceedings (Law Com No 216, 1993). The main objection to the proposed abolition of the rule was that it might lead to 'superfluous, repetitious, or prolix evidence prolonging trials unnecessarily' (para 4.20). The Commission had canvassed the possibility of an express rule allowing the exclusion of otherwise admissible evidence if its probative value were outweighed by considerations of undue delay, waste of time, or the needless presentation of cumulative evidence. But they declined to recommend an express statutory provision to that effect, for several reasons. One was that they believed that 'although not well known, the power to exclude repetitious and superfluous evidence in fact already exists' (para 4.22(ii); the scope of the power is explained in paras 4.49 to 4.58). The project referred to the Commission by the Lord Chancellor (as a result of a recommendation of the Civil Justice Review in 1988) had been limited to the hearsay rule in civil proceedings, whereas any statutory provision to this effect could not sensibly be limited to hearsay evidence. The power to exclude needlessly prolix or repetitious evidence was part of the courts' inherent power to control their own proceedings. There was a developing trend away from the judge as 'passive umpire' and towards much stricter court control of the proceedings both before and during the trial. Civil procedure was then in the process of review and development which culminated in the 1998 Civil Procedure Rules. Hence if it were thought that the courts' exclusionary powers should be made more explicit, this should be done by rules of court rather than by primary legislation (paras 4.22 - 4.24; 4.62 - 4.64).

    76.  Thus we find that the power of the court to control evidence is spelled out in CPR 32.1:

    "32.1(1) The court may control the evidence by giving directions as to -

(a)  the issues on which it requires evidence;

(b)  the nature of the evidence which it requires to decide those issues; and

(c)  the way in which the evidence is to be placed before the court.

  (2)  The court may use its power under this rule to exclude evidence that would otherwise be admissible.

  (3)  The court may limit cross-examination."

    77.  This is clearly part of the powers of active case management which permeate the whole of the Civil Procedure Rules, all of which are subject to the overriding objective set out in CPR 1.1:

    "1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

    (2)  Dealing with a case justly includes, so far as practicable, -

    (a)  ensuring that the parties are on an equal footing;

    (b)  saving expense;

    (c)  dealing with the case in ways which are proportionate -

    (i)  to the amount of money involved;

    (ii)  to the importance of the case;

    (iii)  to the complexity of the issues; and

    (iv)  to the financial position of each party;

    (d)  ensuring that it is dealt with expeditiously and fairly; and

    (e)  allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

    78.  It is well within this objective to seek to get the parties to agree as many facts as possible, to limit the number of witnesses who may be called to give evidence on a particular issue, or to restrict the amount of documentary evidence placed before the court. But it would be a strong thing indeed to use such case management powers to exclude the admissible evidence of one of the parties on the central facts of the case. There may be circumstances in which this could be done. The unreasonable refusal of that party to subject himself to cross-examination may be one of them. It might be grossly unjust to the other party, even contrary to his right to a fair trial under article 6 of the European Convention on Human Rights, to decide a claim principally on the untested evidence of a party who had not been subject to cross-examination of any sort. But that is not this case. The appellant is quite willing to be cross-examined by a procedure which is agreed will cause no prejudice to the respondent. Accordingly, I share the view of the judge that it would be difficult, not only to exclude his witness statement but also to accord it less weight on the ground that he was unwilling to be cross-examined. In those circumstances, it is infinitely preferable to allow him to give his evidence orally and be cross-examined on it by video link.

    79.  I do not think that CPR 32.7 is any real help on this issue. It is expressly limited to 'a hearing other than the trial'. The general rule at such hearings is still that evidence is given in writing: see CPR 32.2(1)(b). This is no longer limited, as it was under the previous rules, to evidence given on affidavit. The previous rules also made provision, equivalent to that in CPR 32.7, for the court to give permission for the person giving that evidence to be cross-examined and for his evidence not to be used without the court's permission if he failed to attend as required by the court. There is no equivalent express provision as to what is to happen at trial. The considerations applicable to satisfying the overriding objective when an action is being tried are obviously different from those applicable at an interlocutory stage. Even at that stage, the Court of Appeal has hesitated to exclude such evidence altogether: see Phillips v Symes [2003] EWCA Civ 1769.

    80.  The Civil Evidence Act 1995 and the Civil Procedure Rules 1998 are part of a new approach to civil litigation in this country. The court is in charge of how the dispute which the parties have put before it is to be decided. Technicalities which prevent the court from getting the best picture it can of the case are so far as possible to be avoided. The court is to be trusted to evaluate the weight of the relevant evidence for itself. The evidence is to be given in the most efficient and economical way consistent with the object of doing justice between the parties. New technology such as VCF is not a revolutionary departure from the norm to be kept strictly in check but simply another tool for securing effective access to justice for everyone. If we had a rule that people such as the appellant were not entitled to access to justice at all, then of course that tool should be denied him. But we do not and it should not.


My Lords,

    81.  The appellant Roman Polanski is unwilling to come to this country lest he be arrested and extradited to the United States of America to receive punishment for an offence of unlawful sexual intercourse with a 13-year-old girl which he committed in California in 1977. He fled that jurisdiction in 1978 after pleading guilty to the offence and spending some six weeks in prison undergoing pre-sentence tests, but before sentence was pronounced by the court. He has resided since then in France, from which country he cannot be extradited to the United States, as he has French citizenship and the French Republic will not extradite its citizens. If he were to come to this country he would be liable to be extradited under the terms of the extradition treaty with the United States.

    82.  The appellant has brought an action in which he has claimed damages for libel against the respondents, the publishers of the magazine Vanity Fair, in respect of the publication in this country of an article which was contained in the July 2002 issue of the magazine and published in several countries. The content of the publication and the issues in the action have been set out in the opinion of my noble and learned friend Lord Nicholls of Birkenhead and I need not repeat them.

    83.  In an interlocutory application in the action the appellant sought a pre-trial direction that he be allowed to give his evidence from France by means of a video conferencing link ("VCF"), pursuant to CPR rule 32.3, which provides that "The court may allow a witness to give evidence through a video link or by other means." His admitted object in seeking this direction is to avoid the necessity of coming to this country, with the concomitant risk that he would be arrested and extradited.

    84.  Certain matters are not in dispute. The technology used in giving evidence by VCF is good, so that there is little disadvantage to the other party, as Eady J said in his ruling to which I shall refer. That disadvantage has not, however, been entirely eliminated, and it is to be noted that in para 2 of the VCR Guidance set out in Annex 3 to Practice Direction - Written Evidence, set out in section 32PD.33 of the CPR, it is stated, after the advantages have been enumerated:

    "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 ... 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."

    I would refer also to the discussion in paragraphs 27-9 of the judgment of Simon Brown LJ in the Court of Appeal, in which he accepted that by reason of the factors there set out "VCF evidence is less ideal even than usual in a case like this".

    85.  Eady J gave a direction on this issue in a ruling on 9 October 2003, in which he carefully set out the several factors which he considered should be balanced in reaching his decision. His conclusion was contained at pages 6-7 of the ruling:

    "In all the circumstances it seems to me that the considerations which I have to take into account in the exercise of my discretion weigh very heavily in favour of this route being taken and the countervailing disadvantage to the defendants is in my judgment very small, if any."

If the only factors to be weighed in the balance were those which operated to confer advantage or impose disadvantage on one or other of the parties, I should have no hesitation in accepting that this was a proper and correct exercise of Eady J's discretion.

    86.  In giving his ruling, however, the judge did not take into account the factor of public policy, which was the foundation for the Court of Appeal's reversal of his decision. In pursuance of the principle that people should not be permitted to escape the consequences of their criminal conduct, the law discourages litigants from escaping the normal process of the law, a policy which the order permitting the appellant's evidence to be taken by VCF would tend to undermine. It is one species of the genus described by Lord Diplock in Hunter v Chief Constable of the West Midlands [1982] AC 529 as -

    "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of procedure rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."

The principle is one which should be applied on grounds of public policy, not for the benefit of a party who may gain by its application.

    87.  After weighing the relevant considerations, including the principle of public policy which I have described, the Court of Appeal held that in all the circumstances of the case Eady J was wrong to give a direction permitting the appellant to give his evidence by video link. Simon Brown LJ set out his conclusions at paragraph 47 of his judgment:

    "This claimant is a fugitive offender, convicted of a serious offence for which he has yet to be sentenced. Anxious though he may be to nail what he says is the lie about his having sought (34 years ago) to exploit his tragically deceased wife's name, such a libel action is, as Mr Shields submits, a "volunteer action" (or "action for choice") and, moreover, one which could more appropriately have been brought in the United States where the principal publication took place or in France where the claimant lives. He is invoking this court's jurisdiction for his own benefit, not defending a claim brought against him. He should not be permitted to litigate on special terms. No libel action has ever yet been fought in this country in the claimant's absence (although in one action the claimant gave no evidence at all, and in another the claimant gave evidence by VCF as to damages). This is not the appropriate case for that unique distinction. Clearly the court's general policy should be to discourage litigants from escaping the normal processes of the law, rather than to facilitate this. The order made below to my mind overlooks and undermines that policy. If an order is properly to be made in favour of this claimant then it is difficult to imagine a case when it would not be."

Jonathan Parker LJ said at paragraph 58:

    "Had Mr Polanski been convicted in England, it seems to me inconceivable that the English courts would have allowed him, as claimant, to conduct civil litigation here via VCF solely in order to enable him to continue to escape the consequences of his conviction; and I cannot see why the fact that his conviction was in the United States, with whom the United Kingdom has an extradition treaty, makes any difference."

Thomas LJ concluded at paragraph 63:

    "In the result there can be no reason, let alone sufficient reason, which can properly be advanced to permit the claimant to give his evidence by VCF and thus to depart from the normal rule that a witness should give evidence in person in the court room and be cross-examined in person on it. He is not being shut out from access to justice; it is entirely his decision as to whether he comes to London to give evidence in support of his claim."

    88.  There is an important countervailing factor, that the courts should be slow to resort to public policy considerations which will defeat a claim that ex hypothesi is a good cause of action. That factor was clearly articulated by Lord Lowry in Spring v Guardian Assurance [1995] 2 AC 296 at 326:

    "I also believe that the courts in general and your Lordships' House in particular ought to think very carefully before resorting to public policy considerations which will defeat a claim that ex hypothesi is a perfectly good cause of action. It has been said that public policy should be invoked only in clear cases in which the potential harm to the public is incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that the court should not enforce a liability which prima facie exists. Even if one should put the matter in a more neutral way, I would say that public policy ought not to be invoked if the arguments are evenly balanced: in such a situation the ordinary rule of law, once established, should prevail."

    89.  I acknowledge and accept the importance of this principle, which underlies the conclusion of those of your Lordships who would allow the appeal. The ground on which I respectfully differ from that conclusion is that in my judgment greater weight requires to be given to the implications of a decision allowing the appellant to give evidence in this case by video link.

    90.  I may state at once that I would not support the application of the principle in such a way that a person in the position of the appellant would become in effect an outlaw. Mr Pannick QC for the respondents, quite rightly in my opinion, disclaimed reliance on any such use of the principle. I also respectfully agree with the view expressed by Lord Nicholls of Birkenhead in paragraph 19 of his opinion that it is not appropriate to have resort to the doctrine of ex turpi causa non oritur actio. Nor is it necessary to import into our legal system the full rigour of the fugitive offender doctrine accepted in courts in the United States.

    91.  Where I part company with the majority of your Lordships is in the application of the opposing principles and the weight which should be given to each in a case such as the present. Before the Court of Appeal counsel for the appellant was prepared to accept that, in some cases at least, the court could properly refuse to make a VCF order in favour of a fugitive from justice, that is to say, a litigant who had committed an offence in this country and had left the jurisdiction in order to avoid arrest. Before the House, however, this concession was not forthcoming. If a VCF order is made in the present case in favour of the appellant, one might next find such a fugitive from justice claiming that there is no sustainable reason why it should be refused to him. For the courts to permit a fugitive to give his evidence by video link so that he could stay out of the jurisdiction and avoid arrest would in my opinion affront the public conscience and bring the administration of justice into disrepute. I do not consider that that case could be distinguished by the argument that it would constitute an abuse of the process of the court and that the present case would not fall into that category. I do not find it necessary to attempt in this opinion to define the limits of abuse of the process of the court, for it seems to me that both that area of the law and the one invoked on behalf of the respondent in the present case are applications of the same principle, viz the power of the court to prevent misuse of its procedure in a way which would bring the administration of justice into disrepute.

    92.  When one accepts the validity of the proposition that a claimant who has fled from justice in this jurisdiction should not receive the assistance of the court to bring a civil claim without giving his evidence in person in court in the ordinary fashion, then I do not think that one can easily reach a different conclusion in respect of an offender in another jurisdiction who wishes to avoid extradition from this country. They seem to me to be governed by the same principle, and if there is a difference between them it is only one of degree. I cannot myself accept that, absent other distinguishing factors, it is right to refuse one permission to give evidence by VCF and give it to the other.

    93.  I therefore consider that the Court of Appeal was correct in its approach to the issue. The court has to weigh up a number of considerations. Those which Lord Nicholls has discussed in his opinion are of course of importance and due weight must be given to them, as also to those enumerated in paragraph 46 of the judgment given by Simon Brown LJ. One must take into account on one side of the equation the fact that the technology is now well established and its use would not cause much prejudice to the respondent. If, as appears probable, the appellant would be unlikely to succeed in his case if he were unable to give evidence is obviously a consideration of great strength. As against that is the fact that he could have brought timeous proceedings in France if his main object is, as he claims, to clear his name - he commenced the action in England before the time-limit had expired in France. Most heavily against him has to be weighed the factor, which to my mind is a very powerful one, that the claimant wishes to have the assistance of the court to give his evidence in a special way, which will enable him to avoid the consequences of his criminal act. I consider that it would be quite wrong to allow him to do that, even if it were to mean that the exercise of his right of action for the publication in this country of a defamatory article is fatally inhibited. I agree with the Court of Appeal that this factor should prevail when the balancing exercise is carried out and that the order was wrongly made by the judge.

    94.  Counsel for the appellant also argued that the refusal to permit the appellant to give evidence by video link, which was tantamount to excluding him from presenting his case in court, constituted a breach of Article 6 of the European Convention on Human Rights. I would not accept this argument. The European Court of Human Rights has stated and regularly applied the principle that the right of access is not absolute. So in A v United Kingdom (2002) 36 EHRR 917, having stated in paragraph 73 of its judgment that the right of access to a court constitutes an element inherent in the right to a fair hearing, the Court continued in paragraph 74:

    "However, the right of access to court is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

    95.  In Eliazer v Netherlands (2001) 37 EHRR 892 the Court dismissed an application from a person who had been convicted in absentia on an appeal and refused a hearing by the Netherlands Supreme Court because no appeal lay against proceedings in absentia. At paragraph 30 of its judgment the Court reiterated the same principle:

    "The Court recalls that the right to a court guaranteed by article 6 of the Convention, of which the right of access is one aspect, is not absolute. It may be subject to limitations, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved. In addition, the compatibility of limitations under domestic law with the right of access to a court guaranteed by article 6 of the Convention will depend on the special features of the proceedings concerned and account must be taken of the whole of the proceedings conducted in the domestic legal order as well as the functions exercised by a court of cassation whose admissibility requirements are entitled to be more rigorous than those of an ordinary appeal court."

In McElhinney v Ireland (2001) 34 EHRR 322 the Court dismissed an application brought by an applicant who claimed that he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant's vehicle following an incident at a checkpoint. He brought proceedings in the Irish courts, which dismissed his claim on the ground of State immunity. The judgment was mainly concerned with the principle of State immunity, but the Court at paragraphs 39-40 of its judgment added a further ground for rejecting the application: since the applicant could have sued the British Government in the Northern Irish courts, the decision of the Irish court did not in these circumstances exceed the margin of appreciation allowed to States in limiting an individual's right of access to court. I accordingly consider that, in application of the principle contained in these cases, no breach of Article 6 was involved in the decision of the Court of Appeal to refuse the appellant permission to give his evidence by video link.

    96.  I should mention in conclusion one other suggested course which was discussed in the judgment of Thomas LJ and in argument before the House. This was that the appellant might seek to have his written statement admitted by way of hearsay notice given in pursuance of CPR Rule 33.2. Under Rule 33.4, however, the respondent might apply to the court to permit the appellant to attend to be cross-examined. If he then refused to come to this country for that purpose, then I think that the same policy reasons apply as in the issue of permitting him to give his evidence by video link and that the grounds for allowing the statement to be admitted in evidence are no stronger. I therefore consider that in those circumstances the court should clearly use the provisions of CPR Rule 32.1 to exclude the statement from use in evidence.


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