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Remote Witness Testimony: Lessons from Martin v Herbert Smith Freehills LLP
The Covid-19 pandemic has accelerated the adoption of remote hearings in litigation and arbitration proceedings, highlighting their cost and time efficiencies. However, the recent case of Martin v Herbert Smith Freehills LLP ("Martin v HSF") underscores the need for careful consideration before opting for remote witness testimony. This article examines the implications of this case for both litigation and arbitration practitioners.
Case Background:
In Martin v HSF, the defendant sought permission from the English court for a witness based in Singapore to give evidence by video. Despite the availability of suitable videoconferencing facilities and the witness's proficiency in English, the court denied the application. Judge Freedman, referencing the English Civil Procedure Rules (CPR), highlighted that videoconferencing is not as ideal as in-person testimony. He emphasized that the degree of control over a remote witness is limited and that convenience should not dictate its use. Given the centrality of the witness's evidence and the importance of scrutinizing it closely, the court decided that in-person testimony was necessary to ensure fairness and justice.
Implications for Arbitration:
While Martin v HSF pertains to litigation, its lessons are equally relevant for arbitration. Major arbitral institutions generally grant tribunals broad discretion in procedural matters, including remote witness testimony. For instance, the ICC Rules and LCIA Rules allow tribunals to decide on remote hearings after consulting the parties. Similarly, the IBA Rules on the Taking of Evidence in International Arbitration provide flexibility but lack specific guidance on when remote testimony is appropriate. Arbitral tribunals must balance several factors when considering remote testimony requests. These include the reasons for the request, potential time and cost savings, and technological requirements. Just as in Martin v HSF, tribunals must weigh a party or witness’s preferences against the need for fairness and thorough examination of evidence.
Future of Remote Hearings:
Despite the challenges highlighted by Martin v HSF, the use of videoconferencing in hearings is unlikely to diminish. Technological advancements, such as 360-degree cameras and virtual reality tools, are enhancing the remote hearing experience, making it more effective and reliable. These technologies can help ensure witnesses are not receiving external assistance and can capture non-verbal cues more accurately than traditional in-person hearings. The arbitration community has made significant strides in adapting to remote hearings. Increased familiarity and proficiency with virtual platforms are likely to improve the overall effectiveness of remote proceedings. For example, videoconferencing allows closer observation of facial reactions and provides easily recordable sessions, offering a better record of proceedings compared to transcripts alone.
Conclusion:
Remote hearings and the taking of evidence by video are here to stay, driven by technological advancements and the lessons learned during the pandemic. However, Martin v HSF serves as a reminder that remote testimony should not be accepted as a default option. Practitioners must consider the broader picture, ensuring that the pursuit of efficiency does not compromise the administration of justice. Future editions of the IBA Rules could provide valuable guidance on the appropriate use of remote testimony in international arbitration, balancing technological benefits with procedural fairness.
- Major arbitral institutions generally grant tribunals broad discretion in procedural matters, including remote witness testimony.
- Arbitral tribunals must balance several factors when considering remote testimony requests.
- Increased familiarity and proficiency with virtual platforms are likely to improve the overall effectiveness of remote proceedings.
