Examination of witnesses in English Court proceedings in the DIFC

In brief:

1. Witnesses are not always able to attend trial. A witness may be unable, for example, to enter the jurisdiction where the trial is taking place because he or she is subject to sanctions. In England and Wales (and other jurisdictions), one solution to this problem is for the trial judge to appoint him or herself as “special examiner” for the purpose of taking evidence from the witness overseas during the course of trial. When this is done, a witness examination is conducted before the judge, albeit in his or her personal capacity as a special examiner and not as a judge. A record of the examination is then admitted into evidence at trial.
   
   
2. In the English case Gorbachev v Guriev [2024] EWHC 247 (Comm), HHJ Pelling KC made such an order. He appointed himself as a special examiner to take the evidence of the defendant and his son, both Russian nationals (subject to UK sanctions and unable to enter the UK), in the Dubai International Financial Centre (DIFC).
   
   
3. The examination took place in the DIFC. It is the first time an English High Court Judge, sitting as a special examiner, has been deployed in the UAE. Hadef & Partners is UAE counsel for the defendant in Gorbachev and was instrumental in securing permission for the examination to take place in the DIFC.
   
   
4. The case demonstrates that the DIFC may be a suitable location for taking witness evidence in circumstances where a witness is unable to enter the country in which the proceedings have been commenced (for whatever reason).
   
   
5. Gorbachev is perhaps most important, however, for its contribution to continuing judicial consideration of: (i) the circumstances in which the special examiner procedure is and is not appropriate; (ii) the pros and cons of the special examination procedure; and (iii) the purpose of the procedure, each of which is discussed further in this article.

A witness’ oral evidence, and the examination of that evidence, can be critical to the outcome of a case. Witnesses, however, are not always able to attend and give evidence in person and whilst many jurisdictions may make provision for the remote examination of witnesses, legal practitioners almost always favour the in-person examination/cross-examination of key witnesses at trial.

In circumstances where a witness is unable to travel to a particular jurisdiction to give examination, for example if he or she is subject to an arrest warrant within the jurisdiction in which the trial is taking place, subject to a travel ban which prevents him or her from travelling to the jurisdiction, or the subject of political/trade sanctions/embargos, courts may look to “neutral” jurisdictions in which the taking of evidence may be conducted. In such situations, the court will be concerned to find the next-best means of taking the witness’ evidence. This is especially the case where the witness is a defendant or someone on whose evidence the defendant wises to rely, as the quality of that evidence goes to the ability of the defendant, who did not initiate the proceedings and against whom judgment might be given, to defend the claim brought against him or her.

Solutions

In England and Wales (and other jurisdictions) two main solutions to this problem have emerged. Firstly, the court may direct that the witness who is unable to attend trial gives his or her evidence remotely by video link. Secondly, the trial judge may appoint him or herself as “special examiner” for the purpose of taking evidence from the witness overseas during the course of a trial. In the second solution, a witness examination is conducted overseas before the judge, albeit in the judge’s capacity as a special examiner and not as a judicial officer. A record of the examination is then admitted into evidence at trial in lieu of the relevant witness giving that evidence at trial.

Until Skatteforvaltningen v Solo Capital Partners LLP & Ors [2024] EWHC 19 (Comm), a judgment handed down on 12 January 2024, there does not seem to have been any doubt that a trial judge could appoint him or herself as a special examiner. In Skatteforvaltningen, however, HHJ Andrew Baker queried the correctness of that proposition. [1]  A key question for HHJ Baker, one not addressed by the parties in that case or resolved by HHJ Baker, was whether a deposition could occur during as opposed to only before the trial at which that evidence was to be deployed (see paragraph 21). The primary rule in the applicable regime, rule 34.8 of the English Civil Procedure Rules, referred to a party applying "for an order for a person to be examined before the hearing takes place" (emphasis added).

In a judgment handed down only 19 days after Skatteforvaltningen, Gorbachev v Guriev [2024] EWHC 247 (Comm), HHJ Mark Pelling KC reaffirmed the pre-Skatteforvaltningen understanding and made an order that the evidence of the defendant and his son, both Russian nationals subject to UK sanctions and unable to enter the UK, be taken in Dubai by HHJ Pelling KC sitting as a special examiner. In terms of CPR 34.8, HHJ Pelling KC found that the court’s case management powers enabled him to make an order for witnesses to be examined during trial if that was appropriate (see paragraph 11).

First special examination in the UAE

The hearing took place in the DIFC, as a jurisdictional freezone in the UAE (between 6 and 10 May 2024. It was the first time an English special examiner has been deployed in the UAE. Hadef & Partners is UAE counsel for the defendant in Gorbachev and was instrumental in securing both permission for the examination and a location in the DIFC.

An ongoing discussion

Gorbachev is perhaps most important, however, for its contribution to continuing judicial consideration of:

(i) the circumstances in which the special examiner procedure is and is not appropriate; (ii) the pros and cons of the procedure – in these respects, Gorbachev and Skatteforvaltningen make for complementary reading; and (iii) the purpose of the procedure – in this regard, Gorbachev and Skatteforvaltningen appear to be at odds with each other.

(i) The circumstances in which the special examiner procedure is and is not appropriate

Courts and practitioners generally agree that something is lost when evidence is given remotely and is mediated by a camera and a screen. As such, where an allegation depends on a careful assessment of oral evidence (as in Gorbachev), it is more important that the judge will have seen the witness give that evidence in person. In this case, the special examiner procedure, rather than giving evidence by video link, is likely to be appropriate.

Following on from this point, where such a careful assessment of oral evidence is required and one party (and any witness supporting his or her case) is able to attend court in person while another party (and any witness supporting his or her case) is not, ensuring a level playing field may require the court to utilise the special examiner procedure so that both parties’ are afforded the advantage of an in-person, full presentation of their evidence.

Conversely, where evidence is less about what happened and its assessment is not a matter of the witness’ presentation and demeanour, and where, say, a witness’ explanation of events will be critical (as in Skatteforvaltningen), suitable audio-visual equipment is likely to adequately convey the witness’ explanation. In this case, there will be less justification for using the special examiner procedure, because of its important disadvantages (discussed below).

Moreover, even where presentation and demeanour are important, while using the special examiner procedure may level the playing field in terms of witnesses presenting their evidence in person to the judge, it can create an inequality between the parties who are willing and able to attend or be represented at the overseas examination and parties who are not. Any party not in attendance would not have the same experience of the evidence and any party wishing to cross-examine may not have the same opportunity to interrogate that evidence.

(ii) The pros and cons of the procedure

The main advantages of the special examiner procedure are part and parcel of the factors which make its use appropriate. In other words, the procedure is advantageous because it enables the judge to more carefully assess oral evidence than would be possible through audio-visual equipment, including in terms of the witness’ presentation and demeanour. That which might be “lost” through oral evidence being given remotely can be “saved” through the special examiner procedure.

One of the key disadvantages of the special examiner procedure, however, is that the judge does not have any of his or her usual powers to control evidence; indeed, the judge does not sit as a judge at all and sits only as a special examiner. A special examiner (or judge sitting as one) cannot force the attendance of a witness, for example, and he or she cannot prevent inappropriate questions being asked or answered or require that inconvenient questions are answered.

Another key disadvantage is that requiring a judge to travel overseas to take evidence is inevitably costly and disruptive. Moreover, the special examiner procedure will usually extend the length of trial and therefore inconvenience other litigants.

Yet another disadvantage is that, where the special examiner procedure is used, all parties, the general public and the press are unable to attend or be represented in the same way as they would be able for all other trial evidence. Although, this disadvantage can be minimised by televising the examination to the public.

(iii) The purpose of the procedure

Gorbachev and Skatteforvaltningen appear to be in general agreement on points (i) and (ii) above. The same cannot be said in relation to the views expressed in each judgment in relation to the purpose of the special examiner procedure.

While it is not stated expressly, Gorbachev is quite clearly premised on it being correct for the trial judge to make an assessment of the witness or the evidence when sitting as a special examiner. Hence, HHJ Pelling KC stated that “the opportunity of seeing the witness give evidence in person” was likely to be important as “[t]he central allegation will depend upon a careful assessment of the oral evidence of the defendant and his witnesses” (paragraph 15(ii)) and “the oral evidence of the claimant and defendant is, as I have explained, critical to the outcome, or is likely to be critical to the outcome of the fundamental issue in this case” (paragraph 15) (emphasis added).

In Skatteforvaltningen, Baker J took a very different view:

“…I respectfully question the premise that seems to have been thought persuasive in Peer International and Attorney General of Zambia [i.e. the earlier authorities], namely that any marginal gain to be achieved by the trial judge observing the examination in person (by being the special examiner) is a gain that it is proper to chase. It is not the function of a special examiner taking a deposition to make an assessment of the witness or of the evidence; and the oral evidence, as given by the DWF Defendants in Dubai if they were examined there pursuant to CPR 34.13(4), would not be trial evidence. The trial evidence generated by the examination would be, and would only be, whatever record of the examination was then admitted into evidence at trial. I question the appropriateness of the trial judge taking into account matters that could only be noticed or assessed by being present in the room with the witnesses, those matters, ex hypothesi, having formed no part of the trial.” (emphasis added).

It remains to be seen how HHJ Pelling KC will deal with a scenario where an assessment that he made of the defendant or his son during the special examination (say, as to their demeanor) is not discernable in the record of the examination as admitted into evidence at trial. For now, however, it seems clear that the purpose the special examiner procedure and the correctness of using it for the purpose of assessing witnesses and their evidence during the examination will continue to be the subject of judicial discussion.

Due to the reorientation towards the UAE of many companies and individuals who have become subject to sanctions, or face other restrictions or issues entering particular countries to give evidence, it is likely that there may be future special examiner deployments in the UAE related to English litigation (or any other jurisdiction with a special examination, or similar, procedure). Hadef & Partners is well placed to provide UAE advice and support to parties involved in litigation with such international dimensions.

For any further information in this regard, please contact Zarghona Fazal (z.fazal@hadefpartners.com).