26th Jul 2022

Remote Evidence: I can be anywhere, right? Wrong! Karen Boyle’s latest blog provides essential guidance on giving evidence in the Tribunals.

With the emergence of remote hearings and CVP during the pandemic, the use of technology has become an essential tool to ensure the administration of justice.  As we emerge into a new era, post pandemic, the use of remote hearings looks like it is here to stay.  It is worth remembering, although it should be obvious, a remote hearing remains a formal hearing and rules of evidence and jurisdiction apply. 

Is it permissible to conduct your remote hearing or give evidence to a tribunal, whilst driving your car, or sitting on a train? Hopefully, these are easily answered?! 

How about, whilst on holiday, business or resident, outside of the UK? 

The case of Agbabiaka (evidence from abroad: Nare guidance) [2021] UKUT 286 (IAC) lays down useful guidance on the jurisdictional responsibility for parties, and their representatives, when a party intends to give oral evidence in a remote hearing, whilst being present outside of the UK.  In essence, it is now necessary to ascertain whether the foreign state objects to evidence being given to a Court in the UK, from within their territory.  The guidance can be summarised as follows:

  • An application to call evidence remotely from abroad must be made in sufficient time before the hearing to allow it to be dealt with properly.  Such application should be made at the Court where the hearing will take place and must give the reason the witness cannot attend from the UK. Further, details of the nature of the evidence they will give, an explanation of the arrangements likely to be in place in the foreign country and an undertaking to pay any expenses incurred.
  • The applicant must make all necessary enquiries with the Taking of Evidence Unit (ToE) of the Foreign, Commonwealth and Development Office, (FCDO) and provide the Court with the foreign state’s position on evidence being taken from their state.  The FCDO hold a list of countries who have provided a blanket consent.  Applicants must check and obtain the necessary permissions and be able to prove consent.  Consent is not necessary for written evidence or oral submissions.
  • There is no requirement for distance evidence to be given from another Court/Tribunal.
  • The decision whether to grant permission to the applicant is a judicial one.  Judges must take into account the reasons supporting the application, any response from other parties, as well as the overriding objective and Court rules. 
  • Arrangements to ensure equal and adequate access to the remote link will be required, including the use of an Interpreter. 
  • The Judge may have to consider disadvantages caused by evidence given remotely when it is challenged, and submissions should be invited and considered if the issue arises. 
  • There can be substantial delays in the FCDO obtaining answers from states where requests are necessary.  As such, the duty to give effect to the overriding objective may require the Court to consider alternatives to the giving of oral evidence.  Each case will be considered on its own merits. 

In April 2022 the Tribunal published Presidential guidance on the taking of evidence from abroad which can be found on the Tribunal website; Presidential Guidance (Employment Tribunals: Evidence) [2022] ICR 877 It makes clear that Her Majesty’s Court and Tribunal Service, pursuant to a timely application, will make the necessary enquiries with the ToE Unit at the FCDO on the applicant’s behalf and pay the necessary fees.   It is worthwhile making an application as soon as possible, at PHR where possible.  If the foreign state has not given a blanket consent and is not present upon the FCDO’s list of countries, a formal request will be necessary.  Further information as to practicalities can be obtained from the ToE Unit at the FCDO.

Karen Boyle

July 2022

(Law and details correct at the time of writing)

For further information on Karen Boyle and 18 St John Street’s Employment Team please contact Chambers Director James Parks or Senior Clerk Katie Brown.