Ipsofactoj.com: International Cases [2004] Part 12 Case 2 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

The Condé Nast

Publications Ltd

- vs -

Polanski

LORD JUSTICE SIMON BROWN

LORD JUSTICE JONATHAN PARKER

LORD JUSTICE THOMAS

11 NOVEMBER 2003


Judgment

Lord Justice Simon Brown

INTRODUCTION

  1. Roman Polanski (the respondent), the celebrated film director, is the claimant in a libel action against the appellants due to be heard on 3 November 2003 before Eady J and a jury. On 9 October 2003 Eady J ordered that he be permitted to give his evidence in that trial by video conference link ("VCF") from a Paris hotel. The order was made under CPR 32.3 which provides that:

    The court may allow a witness to give evidence through a video link or by other means.

  2. The reason why the respondent does not wish to give his evidence live in London is lest he be arrested here and extradited to the United States from where he fled on 31 January 1978. He fled having pleaded guilty on 8 August 1977 before a Californian court to unlawful sexual intercourse with a 13-year old girl for which he has yet to be sentenced. The appellants submit that in these circumstances no VCF order should have been made in his favour.

    THE LIBEL ACTION

  3. The defamation complained of appeared in an article published by the appellants in the July 2002 edition of Vanity Fair magazine. The relevant words are these:

    'The thing about Elaine’s’ says Lewis Lapham, ‘is that nobody will allow himself to be impressed by anybody. You could say, ‘I just sold 17,000 copies of my book today’ and they’d ask what you did yesterday. The only time I ever saw people gasp in Elaine’s was when Roman Polanski walked in just after his wife Sharon Tate had been murdered by the Manson clan. I was sitting at a table with a friend of mine who had brought the most gorgeous Swedish girl you ever laid eyes on. I don’t think I’ve ever seen a more beautiful woman. Polanski came over and asked to join us. It turned out that Polanski had been in London when the atrocity took place and he was on the way back to Hollywood for the burial. The Swedish beauty was sitting next to me. Polanski pulled up a chair and inserted himself between us, immediately focusing his attention on the beauty, inundating her with his Polish charm. Fascinated by his performance, I watched as he slid his hand inside her thigh and began a long honeyed spiel which ended with the promise ‘I will make another Sharon Tate of you.’"

  4. The respondent relies upon the natural and ordinary meaning of the words which, he contends, have the following defamatory meanings:

    (1)

    Whilst on his way back from London to Los Angeles to attend the burial of his wife, Sharon Tate, who had just been viciously murdered, the Claimant had stopped off in New York and, in the course of a visit to Elaine’s restaurant, publicly and shamelessly seduced the female companion of one of the other customers.

    (2)

    In the course of this seduction and as an inducement for her sexual favours, the Claimant had promised to make the girl famous with the words: ‘And I will make another Sharon Tate out of you.’

    (3)

    The Claimant by his said conduct had shown such appalling and callous indifference to the fate of his murdered wife that even the hardened regulars of Elaine’s had gasped in astonishment.

  5. The appellants deny those meanings and allege that the words complained of were true in the following, Lucas-Box, meaning:

    Even though his wife had just been viciously murdered, the Claimant had shown a callous indifference to her memory by shamelessly exploiting her name, and the prospect of emulating her fame, in order to make sexual advances on another man’s female companion who he had only just met in a restaurant.

  6. The appellants do not now suggest that the incident at Elaine’s occurred, as the article had said, when the respondent "was on the way back to Hollywood for the burial" (Sharon Tate’s burial which took place on 13 August 1969 following her murder on 9 August 1969) but possibly on 27 August 1969 when, it appears, the respondent was at Elaine’s, during part of the evening in the company of Ms Mia Farrow. The respondent and, so far as she can help, Ms Farrow, say in their statements that nothing whatever of the kind alleged in the article occurred that evening; the respondent made no attempt to seduce anyone’s companion, still less by exploiting Sharon Tate’s name and fame. The appellants, however, seek to justify the Lucas-Box meaning of the words and to that end propose to call Mr. Lapham and the "friend" to whom the article referred, Mr. Perlberg. Ms Farrow, Mr. Lapham and Mr. Perlberg are all due to give live evidence at the trial.

  7. Apart from the defence of justification the appellants rely upon a number of pleaded matters in extinction or mitigation of damages, alleging that "the claimant is a convicted sex offender with a bad reputation as a dissolute and shameless sexual predator". By Eady J’s most recent interlocutory judgment given on 21 October 2003, he permitted the respondent to abandon an innuendo plea and a claim for aggravated damages and ruled that the appellants could seek to mitigate damages by reference to the following matters (which the judge said was "not necessarily an exhaustive list"):

    (i)

    The claimant pleaded guilty to sexual intercourse with a 13-year old girl in 1977 at a time when he was 43 years old.

    (ii)

    He has never been sentenced for that offence and has stayed out of the United States since 1 February 1978, rather than face a term of imprisonment.

    (iii)

    Before his first wife Sharon Tate’s death, the claimant on his own admission in the autobiography regularly committed adultery on a casual basis because he had what might be described as an ‘open marriage’ and he drew a distinction in his own mind and in his own words between sex and love.

    (iv)

    Within three or four weeks of her death, he resumed his casual sexual activities (including, apparently, having intercourse towards the end of August or beginning of September with two air hostesses).

    (v)

    He was quoted in the Mail on Sunday in a lengthy feature article as admitting .... that his reputation had never been his strongest asset.

  8. Mr. Thwaites QC told us in argument that he would propose to open and admit most of those matters at trial. What the respondent complains of is less them than, as he put it in his statement of 13 June 2003: "How shocking the story is, how deplorable it would have been for me to have behaved in such a way, what a callous betrayal of Sharon’s memory it would have been. The story is just false. I cannot let it lie uncorrected."

  9. The issues at trial are thus in a relatively small compass. Nevertheless, at their heart lies the respondent’s character and reputation and the truthfulness of his account of his August 1969 visit to Elaine’s.

  10. It is convenient at this stage to record the following facts:

    1. Having fled the United States, the respondent passed through London on 1 February 1978 en route to France where he has lived ever since. He has never returned either to England or to the United States.

    2. The respondent has dual Polish and French nationality. As a French citizen he cannot be extradited to the United States of America.

    3. Vanity Fair is an American magazine edited and published in New York and with a substantially larger circulation in the United States than in England. It is also published in France.

    THE JUDGMENT BELOW

  11. In his ruling of 9 October 2003 Eady J acknowledged that the respondent has long been "a fugitive from justice" and that his wish to avoid the risk of arrest and extradition constituted "an unattractive reason" for making a VCF order. He recognised too the force of the appellants’ contention that, having chosen to sue and seek a remedy from a jury in this jurisdiction (to that extent "forum shopping"), he should follow the usual practice of giving his evidence here in person so that the jury could form "a complete view about [his] character and demeanour". He thought, however, that "matters of ‘demeanour’ in relation to witnesses are rather out of fashion at the moment" and that "the person who is likely to be prejudiced by that unusual step [giving evidence by VCF] is the claimant rather than the defendants". He further stated that in his experience "there is in most cases very little, if any, actual disadvantage or prejudice to either side when [VCF evidence is given by vulnerable witnesses in criminal cases]" and that "the process of cross-examination takes place as naturally and freely as when a witness is present in the court room".

  12. The judge referred to the first instance decision in Rowland v Bock [2002] 4 All ER 370 and in particular Newman J’s conclusion there in paragraph 9(iv):

    In my judgment full access to the court for justice in a civil matter should not, save in exceptional circumstances, be at a price of the litigant losing his liberty and facing criminal proceedings.

    I shall return later to that authority.

  13. In the event he concluded that the circumstances "weigh very heavily in favour of [a VCF order]" and that nothing that had been said to him led him "to conclude that I would be justified in shutting out the claimant from access to justice in these proceedings in his attempt to vindicate himself in respect of publication within this jurisdiction".

  14. Mr. Shields QC for the appellants submits that the judge below failed to give any or sufficient weight to his essential ground of opposition to a VCF order, expressed in his skeleton argument below as follows:

    As a matter of principle, it is an affront to the administration of justice in its broadest sense, and tantamount to an abuse of process, if a convicted criminal can litigate his reputation in this jurisdiction while exploiting the court’s procedures to evade the judicial consequences of his own criminal conduct.

    PUTTING IN THE RESPONDENT'S WRITTEN STATEMENTS

  15. The underlying assumption below was that if the respondent was not permitted to give evidence by VCF and chose to remain in France, his written statements could be put before the jury as hearsay evidence. Eady J, indeed, stated in terms:

    Access to justice could to some extent be assured by the witness giving his evidence through a witness statement, but that would be a disadvantage, it seems to me, to both sides.

  16. At the opening of the appeal we questioned that assumption and during the hearing it was fully explored. It seemed to me of some importance as I shall shortly explain. First, however, let me consider its correctness for which purpose I now set out the most directly relevant provisions in the Civil Evidence Act 1995 ("the Act") and the CPR.

  17. The Act provides:

    1.

    (1)

    In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

    ....

    3.

     

    Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first mentioned party and as if the hearsay statement were his evidence in chief.

  18. CPR Part 32.1 provides:

    (1)

    The court may control the evidence by giving directions as to:

    ....

    (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.

  19. CPR 33 sets out rules relating to the admission of hearsay evidence. CPR 33.2(2) provides that if the hearsay evidence is contained in a witness statement of a person who is not being called to give oral evidence, the party must when serving that statement inform the other parties that the witness is not being called and give the reasons why. That requirement was not observed here but I do not regard that failure as of significance in this case.

  20. CPR 33.4(1) provides:

    Where a party (a) proposes to rely on hearsay evidence; and (b) does not propose to call the person who made the original statement to give oral evidence, the court may, on the application of any other party, permit the party to call the maker of the statement to be cross-examined on the contents of the statement.

  21. CPR 32.7 provides:

    (1)

    Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.

    (2)

    If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.

  22. CPR 32.7 is, of course, concerned only with "a hearing other than the trial" and not, therefore, the present case. Part 33 is silent as to what should happen if the court gives permission for cross-examination at trial under Part 33.4(1) and the person does not then attend as required.

  23. Mr. Thwaites submits that for want of a provision equivalent to CPR 32.7(2) with regard to the trial itself the court cannot refuse to allow the hearsay evidence, albeit not cross-examined to, to be adduced. I would reject this submission. It seems to me that the court has ample powers to exclude the statement under Part 32.1, and that to do so would in no way offend against s1 of the Act: the evidence would not be excluded on the ground of being hearsay but rather because the witness refused to attend for cross-examination as required.

  24. The importance of this conclusion is to my mind this. It is one thing to decide that, assuming a witness refuses to attend court, his evidence is better given orally by VCF (and so made subject to cross-examination) than admitted in writing as hearsay; quite another to decide that the evidence should be excluded altogether. Paradoxical though at first blush it may appear, I for my part regard the appellants’ case as strengthened, not weakened, by the conclusion I have reached. True, the consequences of refusing to make a VCF order and refusing also to allow the statement to be used (which, given that the court has power to exclude it, would plainly then be the logical thing to do) is to exclude the witness’s evidence entirely and probably, therefore, unless after all he chooses to attend court, to prevent his claim being heard at all, a more draconian result than was contemplated below. But what is important is that such a result avoids what would seem to me the worst of all worlds: refusing a VCF order and yet letting the statements be read to the jury. In the ordinary way, of course, the jury would be directed to consider attaching little weight to the statement since its maker had not been cross-examined upon it. Here, however, as Mr. Thwaites himself submits, that would be a false point given the maker’s own strenuous efforts to give his evidence by VCF with a view to being cross-examined upon it, and given that it was the defendants’ opposition to a VCF order which denied them that opportunity.

  25. In short, it would seem to me more appropriate in a case like this to refuse a VCF order if the consequence were to prevent the evidence being given at all than if it were to result in the evidence being adduced instead in writing. The critical question therefore arising on the appeal is whether the respondent should be able to pursue his libel claim at all if he is not prepared to attend court to give live evidence in the usual way.

    EVIDENCE BY VCF CONTRASTED WITH LIVE EVIDENCE IN COURT

  26. Annex 3 of the Practice Direction to CPR Part 32 sets out video-conferencing Guidance. Paragraph 2 of that Guidance states:

    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 it’s 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.

  27. Mr. Shields points to the Guidance’s acknowledgement of the fact that VCF is "inevitably not as ideal" as the witness’s physical presence in court and submits that this is true above all in libel cases where, as here, the witness’s character, credibility and reputation are crucial and where his evidence is to be assessed by a jury. There was reference in Rowland v Bock to "the time lag that enables a witness on video link more time to answer difficult questions". Mr. Shields says that the point goes further still in a case like this. The impact and immediacy of evidence given in court simply cannot be matched by VCF. Body language is all important. The judge below, he submits, was wrong to deprecate the importance of "demeanour" here. It might indeed be out of fashion in most litigation heard by judges. It remains, however, of the first importance in a libel action before a jury.

  28. Mr. Thwaites disputes all this and submits that with the modern equipment now available nothing of significance is lost by use of VCF: on the magnified screen everything can be seen by the jury. If long sentences in criminal cases can depend upon a jury accepting the disputed evidence of vulnerable complainants given by VCF, why should it be thought unacceptable to give evidence this way in a libel action? Mr. Thwaites disputes in particular Mr. Shields’ contention that it would be the appellants who would suffer any disadvantage. Rather, as the judge below suggested, it would be the respondent himself who would be likely to suffer any prejudice. Indeed, Mr. Thwaites expressly offered to allow the defendants’ evidence to be given by VCF too.

  29. For my part I accept Mr. Shields’ submission that VCF evidence is less ideal even than usual in a case like this. I share the judge’s view, however, that any prejudice from the evidence being given in this way will more likely be suffered by the respondent than by the appellants - prejudice resulting not merely from learning why the respondent was absent, which, of course, the jury would be told anyway, but from the somewhat lessened impact of the respondent’s evidence and celebrity status upon them. None of this, however, do I regard as central to the appeal. Clearly it is an indulgence to permit the respondent to give his evidence by VCF and the real question is whether, as a matter of policy in the particular circumstances of this case, that indulgence should be granted.

    ROWLAND v BOCK [2002] 4 All ER 370

  30. This authority, applied below in the way already described, is heavily relied on by Mr. Thwaites. Mr. Shields does not suggest it was wrongly decided; rather that it is a decision on very different facts.

  31. Put shortly, the claim there was by a Mr. Norgren, a Swedish businessman, against Mr. Bock for £250,000 due under an agreement between them. Mr. Norgren had earlier introduced Mr. Bock to Mr. (Tiny) Rowland. As the judge described it, "the Bock/Norgren dispute [was] a relatively small dot in the portrayal of the battle which was waged on many fronts between Mr. Bock and Mr. Rowland". When Mr. Norgren’s case first came on for trial in June 1997, he was arrested on a warrant issued by Bow Street Magistrates’ Court pursuant to a request for his extradition to the United States on an indictment alleging fraud in connection with insider dealings there. He was held in custody until Mr. Rowland stood surety for him and he obtained bail. He alleged that Mr. Bock had instigated his arrest but was unable to prove that to the necessary standard in contempt proceedings which he later brought against Mr. Bock. His action was again listed for trial in February 2002. Because of his 1997 experience, however, Mr. Norgren was not prepared to return to the UK and so applied for a VCF order. The master refused it but Newman J granted it on appeal and, having shortly afterwards heard the action, found for Mr. Norgren on his claim.

  32. Newman J’s judgment on the VCF application is comparatively brief. He criticised the master’s approach - to the effect that a VCF order should only be made in cases of "pressing need", where the witness is "too ill to attend" - as "too restrictive and conflict[ing] with the broad and flexible purpose of the code which is directed to the objective of enabling the court to do justice". He held that "no defined limit or set of circumstances should be placed upon the discretionary exercise to permit video link evidence". He recognised that "a refusal to attend which could be characterised as an abuse or contemptuous .... could be envisaged as putting the application beyond the favourable exercise of discretion" but concluded, as set out above, that "full access to the court for justice in a civil matter should not, save in exceptional circumstances, be at a price of the litigant losing his liberty and facing criminal proceedings".

  33. Rowland v Bock too, I may observe, appears to have been contested on the assumption that in any event Mr. Norgren’s statement could have been adduced in evidence. In this connection Newman J observed:

    Plainly whatever difference there may be between video link evidence and live evidence in court, the parties will be on a more equal footing than one party being present and cross-examined and the evidence of the other being confined to the reading of a statement pursuant to a Civil Evidence Act Notice.

  34. Certain distinctions between the facts of Rowland v Bock and those of the present case seem to me obvious and important. Paramount amongst them are these:

    1. Mr. Norgren had not been convicted of any offence. He was entitled to be presumed innocent. The respondent by contrast pleaded guilty to what was on any view a serious offence and, having not been sentenced, was a fugitive from justice.

    2. Mr. Norgren could not have brought proceedings in any other jurisdiction. He had, as was later established, a sound commercial claim for a large sum of money. The respondent by contrast has chosen to sue in this jurisdiction when he might more naturally have been expected to issue proceedings either in the United States (where the main publication took place) or in France (where he has lived for the last 25 years). It is, moreover, somewhat ironic that the respondent is suing here in respect of his reputation in this country and yet he has not visited it for 25 years and is still not prepared to come here.

    3. Mr. Norgren’s claim had no connection whatever with the circumstances which put him at risk of arrest and extradition to the United States. The respondent by contrast is suing in respect of his reputation in what Lord Denning MR. in Goody v Odhams Press [1967] 1 QB 333, 341 called "the [same] relevant sector of his life" as his 1977 conviction. Eady J held as much in his judgment of 21 October 2003:

      The relevant sector is the claimant’s behaviour in sexual matters.

    4. Although, as already indicated, I for my part do not regard the disadvantages of VCF compared to live evidence as the really decisive feature of this appeal, I certainly see them as altogether more significant here, in a libel action before a jury, than in Mr. Norgren’s commercial claim before the judge.

  35. Are these distinctions sufficient, however, to justify making the respondent pay what Newman J called "[the] price of the litigant losing his liberty and facing criminal proceedings" as a condition of "full access to the court for justice in a civil matter"? Mr. Thwaites submits not.

    "OUTLAWS" AND ARTICLE 6 OF ECHR

  36. Mr. Thwaites points out that there is no concept of "outlaws" in English law - in contrast apparently to the position under United States law. He contends that an order allowing the respondent to give his evidence by VCF would not constitute an abuse of process. On the contrary, he submits, to refuse such an order would involve the court, a public authority, acting incompatibly with the respondent’s rights under Article 6 of ECHR. Let me examine each limb of the argument in turn.

  37. Anyone, however serious an offender, can bring a civil action in this country even whilst serving his sentence of imprisonment. So much is plain. But recent cases establish that this is generally true too of those actually in contempt of court. It is sufficient for present purposes if, without describing their particular factual context, I cite from two of the authorities.

  38. In Re Swaptronics Ltd [1998] All ER (D) 407, Laddie J at paragraph 20 said:

    I can see no need for an additional power to prohibit a party who is obdurately in contempt, by reason of his contempt, from enforcing his civil rights or from defending himself against civil claims made against him. A person guilty of the most disgraceful and persistent crimes is not prevented by reason of those activities from enforcing or defending civil litigation. That is so even if he is continuing to threaten to commit a criminal act. If a persistent and serious criminal is allowed to litigate, why should a person in contempt of court be prevented from doing so? I can not see why it is necessary to treat him as a pariah because he has offended a court. It is all to easy for a court to be impressed by its own status. Sir Robert Megarry’s Miscellany-at-Law records that in 1631 a litigant who threw a brickbat at a judge, but missed, had his right hand chopped off and nailed to the gibbet on which he was thereafter hanged in the presence of the court. I am not sure what would have happened to him had his aim been better. In any event, we have come a long way since then. The courts needs powers of punishment with which to enforce their orders. The ones they have at present are adequate. They do not need a power which deprives a litigant of his right to litigate. Indeed it seems to me that were the courts to refuse to allow those in contempt access to the courts simply on the grounds that they are in contempt, they could well be acting in breach of the provisions of Article 6.1 of the European Convention on Human Rights which entitles everyone to the determination of his civil rights by means of a fair and public hearing before an independent and impartial tribunal. The ‘everyone’ in that Article is not subject to an exception in respect of people who are guilty of serious offences or contempt of court.

    That, however, may go too far.

  39. This court, in Motorola Credit Corporation v Uzan [2003] EWCA Civ 752, having considered at length the leading authorities concerning the exercise of the court’s discretion as to whether to hear a contemnor, accepted that where an appeal is grounded on an alleged lack of jurisdiction to make the (disobeyed) order at all, it was generally right to hear the contemnor, and concluded on the facts of that particular case:

    55.

    [W]hilst wholly deprecating the defiant attitude of the defendants which has, as appears from the evidence before us, been part and parcel of a series of tactical delays and regrettable lack of frankness in two jurisdictions, we bear in mind that the defendants’ appeals are essentially defensive in nature. Their stance in this jurisdiction has been one of resistance to a series of restrictive and intrusive orders sought by the claimant in foreign proceedings, rather than a voluntary invocation of the powers of the English court for their own benefit. This seems to us to bear on the proportionality of precluding them, as parties in contempt, from what would otherwise be their right of appeal against the freezing orders to which the orders for cross-examination were ancillary. In all the circumstances, we take the view that the defendants should be heard upon, and their arguments treated as addressed to, all of their appeals and applications now before us.

    [emphasis added]

  40. The court then went on to cite from paragraph 20 of Laddie J’s judgment in Re Swaptronics Ltd with regard to the application of Article 6 and made the following observations:

    58.

    First, it is not clear to what extent the proposition was the subject of argument before Laddie J or to what European authority he was referred. Second, it is clear to us that the defendants should not be denied the right to be heard in respect of their alleged contempt and to address the issue as to jurisdiction in that context. Third, as Mr. Leggatt has pointed out, the claimant does not in any event contend that the court should decline to hear the defendants’ appeal simply on the grounds that they are in contempt, but rather that they are abusing the process of the court by seeking to prosecute their appeal against the first order of Steel J, at the same time making it clear they have no intention of complying with the orders of the court whatever the outcome of their appeals. It is clear that the right of access to the court which is implied in Article 6 is not an absolute right but one that is open to restriction provided that the restriction has a legitimate aim in the public interest and the means employed to realise that aim are proportionate: see Brown v Stott [2001] 2 WLR 817 per Lord Bingham at 836B-D and Lord Hope at 851H-852A. The test of proportionality is to be applied on a case by case basis: per Lord Bingham at 836C. As it seems to us, this is reflected in the approach of the House of Lords in the Morgan Grampian case, the width of the discretion there recognised being apt to allow issues of proportionality to be properly considered and applied by the court in coming to its decision whether or not to hear a contemnor. [again, emphasis added]

  41. Mr. Thwaites also relies on a line of authority concerned with the defence of ex turpi causa non oritur actio. I need refer here to a single decision only, Cross v Kirkby (Court of Appeal, 18th February 2000, unreported) where, having reviewed all the case law, Beldam LJ concluded:

    In my view the principle applies when the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct.

    Otton LJ agreed with that judgment.

  42. Judge LJ expressed the principle thus:

    In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense.

  43. Judge LJ had earlier said this:

    The medieval concept of outlawry is unacceptable in modern society. An outlaw forfeited the protection of the law. He could not invoke the assistance of the court to enforce non-existent rights. In the United Kingdom today there are no outlaws. However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice. This is the context in which the application in tort of the principle encompassed in the maxim falls to be examined.

  44. Finally on this part of the case Mr. Thwaites seeks to invoke Article 6 of ECHR, relying upon the ECtHR’s recent summary of the general principles applicable to the concept of a right of access in A v UK (Application No 35373/97 of 17 December 2002):

    73.

    The Court recalls that the right of access to court constitutes an element which is inherent in the right to a fair hearing under Article 6(1) of the Convention ....

    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 ....

  45. Mr. Thwaites himself, however, recognises that the Article 6 point is subject to limitations. Although he withdrew certain of the concessions made in the course of argument, I understood him to accept to the last that there may be cases where the court can properly refuse to make a VCF order in favour of a fugitive from justice, acknowledging that such an order is "an indulgence" which "is less likely to be given to someone seeking to evade justice in this country". He submitted, however, that our courts should be concerned only to protect English justice, not the legal processes of other countries. Had the respondent been convicted of this offence and absconded before sentence in this country that would have been one thing; the occurrence of these events in the United States is, however, he argues, quite another and not something with which we should properly be concerned. For my part I am unable to accept this argument.

    CONCLUSIONS

  46. It is time to state my conclusions on the appeal which are essentially as follows. There can be no absolute rule as to the proper application of CPR 32.3 in circumstances where, as here, a witness wishes to give his evidence by VCF abroad so as to avoid the risk of being arrested here. I would prefer to restate the conclusion reached by Newman J in Rowland v Bock thus: the court should have regard to all the circumstances in deciding whether it is appropriate to make a VCF order specifically to enable a witness to evade the ordinary processes of our (criminal and extradition) law under which he might lose his liberty. I do not accept such that orders should only be refused "in exceptional circumstances". Rather, each case must be considered on its own facts. Newman J set the threshold for granting such orders too low. On the other hand, Mr. Shields’ submission at paragraph 14 above puts it too high. Amongst the more obviously relevant considerations will be these:

    1. The nature of the offence for which the witness risks arrest and whether he has already been convicted of it.

    2. The nature of the civil claim in which the witness seeks to give his evidence by VCF and any relationship between the claim and the offence.

    3. The witness’s role in the proceedings. The court will more readily make a VCF order in favour of a defendant than a claimant, and more readily still in favour of a witness who is not a party at all.

    4. The importance of the claim to the witness and the possibilities of litigating it elsewhere.

    5. The likely disadvantages of VCF compared to live evidence in the particular case.

  47. Having regard to all the circumstances of the present case I have reached the clear conclusion that it was wrong to make a VCF order here. The facts are very different from those in Rowland v Bock, in particular for the reasons set out in paragraph 34 above. Even had I accepted Newman J’s formulation of the correct approach, I would certainly have found "exceptional circumstances" here. This respondent 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 respondent 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 respondent then it is difficult to imagine a case when it would not be.

  48. Such a conclusion in my judgment does not involve treating the respondent as an outlaw, still less infringing his Article 6 rights. In the first place he did not need to sue in the UK to vindicate his reputation but rather chose this jurisdiction, with which he has no natural affinity, for his own reasons. Secondly, however, and altogether more importantly, he is not being denied access to the court here. The "very essence" of his right is not impaired. He can and should attend court to give his evidence before the jury in the usual way. Access to justice is, as Mr. Shields puts it, only a Eurostar journey away. He can then have his "day in court". It is to my mind legitimate and proportionate to make his right of access conditional upon such attendance. The court is not refusing to hear him as sometimes it may refuse to hear a contemnor. Nor is his claim being rejected on some basis akin to the ex turpi causa doctrine. These suggested analogies are simply not apposite.

  49. I reject Mr. Thwaites’ submission that Eady J’s order below should be regarded as a case management decision made by a specialist judge in the exercise of a discretion and thus more than usually difficult (indeed, well nigh impossible) to overturn. Rather, for the reasons I have given, it seems to me that real questions of policy and principle arise here which this court ought properly to address and decide with no particular inhibition.

    FOOTNOTES

  50. I end with just three footnotes. First, to regret that this appeal has had to be heard so perilously close to the trial date. That, however, is no-one’s fault if not the respondent’s. His explanation as to why the application came to be made so comparatively late - despite the claim having been issued on 20 August 2002, within a month of the publication - may or may not be a good one. Essentially it is to the effect that he had been hoping, as a result of various discussions initiated by his advisers both in London and the United States, to obtain a guarantee that he would not be arrested if he came here, but that this ultimately proved impossible.

  51. Secondly, I should record that the respondent has filed extensive evidence seeking to explain and mitigate the circumstances in which, having spent 42 days in detention whilst being assessed for sentence, he decided to flee the country. It is unnecessary to rehearse this evidence, not all of which is accepted. Suffice it to say that the more cogent the mitigation the less risk there must surely be of the respondent losing his liberty now, 25 years on, and the readier should he be to return to the United States to complete the justice process.

  52. Thirdly and finally, I should note Mr. Thwaites’ explanation for the respondent having brought his action here (which in any event, of course, he does by right in respect of the UK publication of the libel) rather than in the United States or in France. He would be unable to proceed in the United States by virtue of the "outlaw" principle applicable there. He would in any event have the additional burden there of proving malice. As for France, a three month limitation period applies and, besides, all the evidence would have had to be translated. None of these considerations to my mind make it any the more appropriate for the respondent to have brought his claim for international vindication here, still less to be allowed to do so on privileged terms.

    RESULT

  53. On 28 October 2003 we allowed this appeal in the following terms:

    .... we allow the appeal, set aside the judge's direction under CPR 32.3 and further indicate that, if the respondent were to seek to put in his statements as hearsay evidence and the appellants in those circumstances were to apply to call him to be cross-examined upon their contents, the court would be bound to allow such application and if the respondents were not to attend court in person for such cross-examination, the court would then be bound to exclude the statements from evidence.

  54. These are my reasons for having so ordered.

    Lord Justice Jonathan Parker:

  55. I agree. I venture to add a few words of my own only because we are differing from a judge who has great experience in the field of libel.

  56. First, in the course of his ruling the judge said that nothing he had heard had led him to conclude that he would be justified "in shutting out the claimant from access to justice in these proceedings" (transcript p.7 lines 21 – 24). In my judgment, however, that is to put the cart before the horse. However efficient VCF may be – and it is highly efficient – it is not yet the procedural norm. The norm is for a witness to attend trial in person to give his evidence and (if appropriate) be cross-examined on it. In seeking permission to depart from the norm, Mr. Polanski is seeking an indulgence from the court; and he is doing so in order to avoid running the risk of being extradited to the United States to be sentenced for a serious crime of which he has been convicted. To my mind, there can be no question of this court, in denying him that indulgence, shutting him out from access to justice; the choice, as I see it, is entirely his.

  57. Secondly, the judge approached the question whether to give a VCF direction by balancing the likely advantages and disadvantages to either party were the application to be granted. Thus, having listed a number of considerations which he regarded as weighing "very heavily" in favour of granting the application (and, in particular, the fact that in his view any prejudice resulting from the use of VCF would be likely to fall on Mr. Polanski rather than on the appellants), the judge turned to what he described as "the countervailing disadvantage" to the appellants, which he regarded as "very small, if any" (transcript p.6 lines 21 - 25). In carrying out that balancing exercise, the judge appears to me to have overlooked what I would for my part regard as an important, indeed decisive, consideration of public policy, viz. that the court should not be seen to assist a claimant who is a fugitive from justice to evade sentence for a crime of which he has been convicted.

  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.

    Lord Justice Thomas

  59. I also agree, but wish, for similar reasons, to add a word of my own.

  60. The improvements in technology are such that, in my recent experience as a trial judge, the giving of evidence by VCF has become by 2003 a readily acceptable alternative to giving evidence in person, provided there is a sufficient reason for departing from the normal rule that witnesses give evidence in person before the court. In the ordinary run of case, a sufficient reason may easily be shown. If there is sufficient reason, then even in cases where the allegations are grave and the consequences to the parties serious, the giving of evidence by VCF is now an entirely satisfactory means of giving evidence in such cases; examples can be seen in the statutory regime permitting young and vulnerable witnesses to give evidence in this way in criminal cases and in civil cases in trials such as de Molestina v Noba [2002] EWHC 2413 (Comm) (see the observations of Langley J at paragraph 24).

  61. The question in this appeal is whether there is sufficient reason. The first reason advanced by the respondent is that if he enters the UK to give evidence, he stands the risk of arrest and deportation to the USA where he would be sentenced for a crime of which he has been convicted on his own plea of guilt. If the offence to which he has pleaded guilty had been committed in the UK and he had fled overseas to avoid his sentence, his refusal to return on the basis that he would be arrested and sent to the Crown Court for sentence could not be possibly advanced as a sufficient reason for departing from the normal rule; he would be seeking an indulgence from the High Court where he was seeking the just resolution of his claim, solely because he would not submit to the justice of the Crown Court from which he had fled to avoid his punishment. Given the serious nature and type of the offence of which the respondent has been convicted on his own plea of guilt and from which he has so far evaded the justice of the courts of the United States, I can see no reason, taking into account all the circumstances set out in the judgments of my Lords, to distinguish the present case from such a case.

  62. The second reason advanced is that the respondent’s evidence by use of VCF would be a better way of the respondent’s evidence being before the court than though his written statement served by way of hearsay notice. However that presupposes that the statement would be before the court. The effect of the changes introduced under CPR Parts 32 and 33 has not, so far, been widely appreciated, particularly as regards the way in which the changes relate to the position of witnesses who are outside the jurisdiction. Under CPR Part 33.4, when one party has served notice that hearsay evidence is to be given through a statement and that that party does not intend to call the maker of the statement to give oral evidence, then the court may permit another party to call the maker of the statement for the purpose of cross examining him. This is a significant power because it enables a court, on the application of a party, to require evidence adduced by the other party to be properly tested rather than simply having to consider the weight to be attached to a written statement, particularly where the evidence in that statement is of importance in the trial. Looking at the effect of CPR Parts 32 and 33 as a whole, it can therefore no longer be an absolute bar to a party refusing to call such a person to be cross-examined, simply because he happens to be out of the jurisdiction; for example, if the witness was on the other side of the Channel, it would not be more inconvenient to travel from there to a court in London than from some parts of England and Wales. If the court considers in all the circumstances that the person outside the jurisdiction should attend and be cross-examined at court in person, but the party intending to call him refuses to arrange for him to come to London, then the ordinary consequences of a refusal to obey an order of the court should follow. In such a case, the consequence would ordinarily be that the party would not be entitled to rely upon that evidence in any form.

  63. In the present case, there is no ground for the respondent refusing to attend for cross-examination in person, as the only ground that could be advanced must fail on the basis set out in paragraph 61. Therefore, if the respondent, as the party bringing the claim, was to refuse to comply with an order of the court that he attend for cross examination, then, because of his refusal to comply, he would not be entitled to adduce his statement as evidence. The statement would not be before the court and therefore the second reason for seeking to use the VCF facility therefore would fall away. In the result there can be no reason, let alone sufficient reason, which can properly be advanced to permit the respondent 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.


Cases

Rowland v Bock [2002] 4 All ER 370; Goody v Odhams Press [1967] 1 QB 333; Re Swaptronics Ltd [1998] All ER (D) 407; Motorola Credit Corporation v Uzan [2003] EWCA Civ 752; Cross v Kirkby (Court of Appeal, 18 Feb 2000, unreported); A v UK (Application No 35373/97 of 17 December 2002); de Molestina v Noba [2002] EWHC 2413 (Comm)

Legislations

CPR: 32.1, 32.3, 32.7, 33, 33.4

Practice Direction to CPR Part 32: Annex 3

Civil Evidence Act 1995: s.1, s.3

ECHR: Art.6

Representations

T Shields Esq, QC & M Barca Esq (instructed by Messrs Reynolds Porter Chamberlain) for the Appellants

R Thwaites Esq, QC & Ms H Rogers (instructed by Messrs Schillings) for the Respondent

Notes:-

This decision is also being reported at [2004] 1 WLR 387.


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