Technology is increasingly being utilised by courts and other bodies for the purpose of dispute resolution. For example, many courts and other dispute resolution bodies around the world, such as arbitration commissions, are conducting online proceedings. This has become even more relevant during pandemics such as the covid-19 pandemic, where people are unable to attend the proceedings in person (for a discussion about the contractual impact of pandemics on corporate and finance transactions, see China Business Law Journal volume 11, issue 5: Pandemics). In addition, many courts and other bodies are hearing evidence provided by witnesses via electronic means, such as video links (for a discussion about evidence given by expert witnesses, see China Business Law Journal volume 10, issue 4: Expert evidence).
This article considers the rules governing the giving of evidence by video link in civil proceedings. Separate rules and principles are relevant in the case of criminal proceedings, where the courts have to consider a range of special issues including the position of vulnerable witnesses and victims of crime. The article begins by examining the rules in common law jurisdictions. It then considers the rules in mainland China. Finally, it examines the situation where evidence from a foreign jurisdiction is collected in mainland China and considers whether this is possible, and, if so, whether evidence can be taken by video.
Common law jurisdictions
In common law jurisdictions, the rules governing evidence are based on both statute and case law, and courts exercise a high degree of discretion based on their inherent power to manage and control cases and court proceedings. This is reflected in rule 32.1 of the Civil Procedure Rules 1998 (UK):
Power of court to control evidence
(1) The court may control the evidence by giving directions as to –
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination.
The traditional position is that oral evidence must be given in person and in public. This is reflected in rule 32.2 of the UK rules:
Evidence of witnesses – general rule
(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing.
(2) This is subject –
(a) to any provision to the contrary contained in these rules or elsewhere; or
(b) to any order of the court.
(3) The court may give directions –
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements
Courts in many jurisdictions are able to hear evidence given by witnesses by video link upon application by a party. This is reflected in rule 32.3 of the UK rules:
Evidence by video link or other means
32.3 The court may allow a witness to give evidence through a video link or by other means.
Similarly, section 47A(1) of the Federal Court of Australia Act 1976 provides that, “the court or a judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means”. Further, section 47B(1) provides that the court or a judge may, for the purposes of any proceeding, direct or allow a person to appear or make a submission “by way of video link, audio link or other appropriate means”.
In Hong Kong, the rules governing video evidence are based primarily on rules formulated in case law.
In all three jurisdictions, there are rules as to when evidence may be given by video. In the UK, for example, a guidance note has been issued in relation to the use of video conferencing (VCF) in civil proceedings. Based in part on the protocol of the Federal Court of Australia, the guidance note provides that:
A judgment must be made in every case in which the use of VCF is being considered, not only as to whether it will achieve an overall cost saving, but as to whether its use is likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognized that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.
The above extract highlights the importance of achieving a balance between convenience and the need for a court to maintain control over the court process.
In Hong Kong, case law has established that courts are prepared to allow video evidence in circumstances where a witness is unable to travel to Hong Kong because of health problems, and where video evidence would be justified on the basis of cost and convenience.
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia