Social housing speed read: Thinking about giving evidence from abroad? Think again!
29th September, 2022
It has long been the case that witnesses who are situated abroad have been able to give oral evidence either by video or telephone, without any requirement to obtain permission from the country from which they are giving evidence.
This was based on the presumption that if a witness was giving evidence voluntarily and there was no involvement of that state’s judicial system in the procurement of the evidence being given, then it was unnecessary to obtain permission from the foreign state in question.
However, having become a much more prominent issue since COVID-19, in October 2021 an Employment Tribunal case of Agbabiaka [2021] UKUT 286 determined that this is no longer the case (see a copy of the judgment here). Now, in such a situation, enquiries must be made of the foreign country where the witness is located to ascertain whether there are any objections to the witness giving evidence to the Court or Tribunal from that country. The permission is not required for written evidence.
New presidential guidance published in April 2022 confirmed this approach, a copy of which can be found here.
Social Housing Providers are not in the habit of calling evidence from witnesses abroad in Court cases. However in modern times of flexible working, we have become used to attending meetings, and court hearings online. Witnesses could be lulled into a false sense of security of thinking they could fit in a trial if not from their sunbed, then from their hotel room abroad.
Think twice, and be aware of the rules.
What needs to be done?
First and foremost, it is for the party who wishes to rely on that particular witness to bring it to the attention of the Court or Tribunal. This must be done at the earliest stage possible and the following information must be given when notifying the Court/Tribunal:
- The case number;
- Confirmation that the party wishes to rely on evidence from a person located abroad;
- The dates of any listed hearing in respect of which the request for the person to give evidence from abroad is being made; and
- The state from whose territory that person would, if permitted, be giving oral evidence.
It should be noted that there is no need for the party to provide either the name of the person located abroad or any summary of what their oral evidence, if given, will be about, nor the need for it to be copied to other parties. The Court or Tribunal will then seek guidance from the Government’s new ‘Taking of Evidence’ Unit (ToE) at the Foreign, Commonwealth and Development Office (FCDO).
Considerations
It is now clear and of utmost importance that any witness who intends to give oral witness evidence whilst they are situated abroad, must obtain permission from that jurisdiction. Any party who fails to do so may face an adjournment on the day of trial.
The guidance itself states that it can ‘take months’ to receive a response on whether authority is given. Given that more and more people are able to work from home, the decision highlights the importance of considering the issue as early as possible (aka as soon as it is apparent that oral evidence from a person abroad may be needed), and ensuring that all relevant permissions have been obtained. It is the responsibility of parties or their representatives to alert the tribunal if they are concerned about the amount of time the enquiry by the ToE is taking.
Given the increased time and effort required to have a witness giving evidence from abroad, parties should consider whether the evidence is necessary and vital, or whether another UK based witness could provide the same evidence. They should also consider avoiding particular dates for trial (such as when the witness has booked holidays). Since parties can rely on written evidence from a witness who is overseas, this is an approach that is encouraged by the guidance. It is apparent that the guidance is encouraging a pragmatic approach, and is looking to limit the considerable delays that are being caused by parties relying on oral evidence.
If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or one of our expert social housing lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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