In consolidated claims brought by the Danish Customs and Tax Administration against 92 defendants in respect of an alleged fraud against it involving Danish withholding tax, the final trial was listed and directions made on the trial timetable. Three of the defendants were resident in Dubai and the subject European arrest warrants such that if they travelled to London to give evidence at trial in person they could expect to be taken into custody and extradited to Denmark to face criminal charges. They sought an adjournment of the trial for the three-week period scheduled for their factual evidence and an order pursuant to CPR r 34.8 for an order that they be examined on oath in Dubai by a special examiner, the trial judge having appointed himself to that role pursuant to rule 34.13(4).
On the application—
Held, application refused. The serious nature of the allegations and the potential consequences for the defendants heightened the importance of ensuring the defendants were able to give their best evidence but, in the context of the evidence they would be giving in the present case and the arrangements made to receive their evidence remotely, there would be no material loss of quality in the defendants’ evidence if given remotely from Dubai as compared with in person. By contrast, the additional litigation costs, the potential for inequality between parties who were able to attend or be represented at the overseas examination and parties who were not, and the inability of the judge to engage with the examination, intervene or rule upon participation while in the role of a special examiner meant there would be significant disadvantages for the litigation process and for the parties should the court adopt the approach suggested. Furthermore, since it was not the function of a special examiner taking a deposition to make an assessment of the witness or of the evidence, and the record of evidence given in that situation would only be trial evidence to the extent that it was later admitted into evidence at trial, any marginal gain to be achieved by the trial judge observing the examination in person while acting as a special examiner was questionable. It followed that the disadvantages of the trial judge appointing themselves as a special examiner under CPR r 34.13(4), interrupting a trial so as to take a deposition abroad from those defendants, outweighed the advantages of such an approach to the extent that it was not in the interests of justice to so order (paras 9, 36–42).
Quaere. (i) Whether a trial judge can, in principle, appoint themselves as special examiner under CPR r 34.13(4), interrupting a trial, so as to take a deposition abroad (paras 19–23, 26–27, 42).
(ii) Whether a High Court judge has authority to grant themselves a leave of absence from office to undertake work otherwise than as a judge without the direction or permission of the Lady Chief Justice or President of the King’s Bench Division (paras 24–25, 42).
(iii) Whether the court’s general case management powers extend to the making of an order under CPR r 34.13 for the taking of a deposition for use at trial when, contrary to the requirement in rule 34.8 that the person is examined “before the hearing”, the deposition is scheduled to take place when the trial is underway.
Charles Graham KC, Abra Bompas and Matthew Hoyle (instructed by Pinsent Masons LLP) for the claimant.
Nigel Jones KC, Lisa Freeman, Sarah McCann and Emily Betts (instructed by Meaby & Co Solicitors LLP) for the Sanjay Shah defendants and Usha Shah.
David Head KC, Christopher Bond and Hannah Glover (instructed by DWF Law LLP) for the DWF defendants.