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