QUEENs BENCH DIVISION
J. BARBER & SONS v. LLOYDs UNDERWRITERS AND OTHERS
Authoritative version at  Q.B. 103
DATE: 1986 April 3
COUNSEL: Alison Green for the first, second and third defendants.
Dominic Kendrick for the fourth defendant.
Mark Hoyle for the plaintiffs.
SOLICITORS: Barlow Lyde & Gilbert; Hewitt Woollacott & Chown; Simon Olswang & Co.
JUDGE: Evans J.
Hearing and judgment in chambers.
EVANS J. This is an application made inter partes to discharge or vary the order of Otton J. made on 26 February 1986. That order appoints an examiner to take the depositions of four named persons who are in fact defendants in the relevant United States proceedings.
Miss Green, for the first three defendants, raised the question of whether the depositions should go ahead at all. She did so tentatively, although the point was not formally abandoned. That issue was argued fully before the Californian court, and in my judgment it would be wrong to interfere with the order to that extent.
A point taken by Mr. Kendrick was that the object of the depositions as described in the letters rogatory goes beyond what is proper under English law. Sub-paragraph 5 of paragraph 10 of the revised letters rogatory makes this request:
Permit counsel for plaintiffs to conduct cross-examination of each witness without limit as to time, provided however that the scope of inquiry shall be limited to questions which are relevant to the subject matter of this action or which are likely to lead to the discovery of relevant and admissible evidence. (fishing expeditions into irrelevant issues and matters are not proper).
The point is conceded by Mr. Hoyle, and I am certainly prepared to rule that the subject matter of the questions should be limited, and that it is desirable for the order to be amended so that sub-paragraph 5 ends with the words to the subject matter of this action. Therefore, the words after that phrase should be deleted and the order is amended accordingly.
As to the dates, 7 April has been changed informally by the examiner to 8 April 1986. A more serious problem is that that date is inconvenient to at least two attorneys. I am asked to change the dates to 21 April or 28 April or to some subsequent date. In view of the order, the right course is to leave the dates to the examiner, although I appreciate that time is short. I realise that it could be inconvenient but this matter has been raised at such a late stage, and the burden which is created for the defendants must remain there. I make no order on this point. However, I wish to make it plain that the parties should try to agree dates; in default of agreement it is for the examiner to decide, and I make no order on it.
The substantive matter with which I am concerned is whether the examination should be recorded on videotape. The practice of the Californian court is to permit such video recording provided certain safeguards are observed, a copy of which is attached to the letters rogatory.
The court here acts under the Evidence (Proceedings in Other Jurisdictions) Act 1975, passed pursuant to, but not specifically [*105] incorporating, the Hague Convention of 1970. The relevant rules are contained in R.S.C., Ord. 70, and especially rule 4(2), which provides:
Subject to rule 6 and to any special directions contained in any order made in pursuance of this Order for the examination of any witness, the examination shall be taken in manner provided by Ord. 39, rr. 5 to 10 and 11(1) to (3) and an order may be made under Ord. 39, r. 14, for payment of the fees and expenses due to the examiner, and those rules shall apply accordingly with any necessary modifications.
The Act, the Convention and R.S.C., Ord. 70 all make it clear that the underlying principle is that the English court should be sympathetic to the request of the foreign court. Examinations in this country should follow procedural norms for proceedings in this country. If a request is made by a foreign court as to a particular manner for taking depositions that manner should be employed, within certain limits. The limits for consideration are first, whether what is proposed is so contrary to English established procedures that it should not be permitted, and second, there is an exercise of judicial discretion as to whether to make an order in any particular case.
Two things are clear: (1) video recording of evidence given in English courts is not permitted. There is statutory recognition of tape recordings, photographs in court are banned; in my judgment videotaping is not allowed; (2) at the other extreme, evidence in the form of tape recordings and video recordings is capable of admission in English courts, just as photographs are commonly admitted.
Here we have an intermediate situation. What is sought is videotaping outside a court, and it is proposed that the videotaping shall be available to the court itself. That is parallel to the taking of tape recordings outside court or a shorthand transcript outside court. It is clearly something different from recording proceedings in the court itself, and in this day and age it is an appropriate method of recording evidence even if it is supplementary to a written transcript. What I have to decide is whether it should be refused on the basis that the method is so contrary to English procedure that the request should not be acceded to. In my own limited experience, and from the remarks of the examiner who is experienced in these matters, video recordings have been used to record evidence given on commission for use in the English courts. I cannot see that the use of video recordings is inconsistent with English procedures. I take Mr. Kendricks point that R.S.C., Ord. 70, r. 4 refers to R.S.C., Ord. 39 and that evidence is usually recorded in a written transcript and I bear in mind Cockburn C.J.s comments in Desilla v. Fells & Co. (1879) 40 L.T. 423, 424, to examination in accordance with English court procedures. Proceedings involving examination of witnesses outside court are not necessarily limited to the permitted methods of recording proceedings in court. It seems to me that the request by the Californian court is not inconsistent with the English mode.
As to discretion, I have heard strongly worded claims by the defendants that the presence of a camera would oppress them and cause additional stress. The defendants are Lloyds underwriters. I have no [*106] evidence that they are not in good health or that they are subject to any personal disability. Of course it is a stressful matter to give evidence and the court is keen to protect those who are under any disability - especially the weak or the old. In the case of these four defendants I cannot accept that there will be additional stress, certainly not enough to outweigh the value and convenience of videotaping the proceedings. On the evidence before me, the videotaping will only be used at the trial if the evidence given there differs from the tapes. It is suggested that the written transcript is enough for this purpose, but there is a fallacy underlying that submission. Even the best transcripts are not 100 per cent. accurate, and the existence of a video recording will undoubtedly assist. I can see therefore great value in having a video recording, which far outweighs the other matters. Courts in this country place great emphasis on the demeanour of witnesses, although opinions may differ as to its value. I will not vary the order to delete the reference to videotaping.