PRACTICE DIRECTION 32 – EVIDENCE
This Practice Direction supplements CPR Part 32
Contents of this Practice Direction
|EVIDENCE IN GENERAL|
|Body of affidavit||Para. 4.1|
|Format of affidavits||Para. 6.1|
|Inability of Deponent to read or sign affidavit||Para. 7.1|
|Alterations to affidavits||Para. 8.1|
|Who may administer oaths and take affidavits||Para. 9.1|
|Filing of affidavits||Para. 10.1|
|Manner of exhibiting documents||Para. 11.1|
|Other documents||Para. 13.1|
|Exhibits other than documents||Para. 14.1|
|General provisions||Para. 15.1|
|Body of witness statement||Para. 18.1|
|Format of witness statement||Para. 19.1|
|Statement of Truth||Para. 20.1|
|Alterations to witness statements||Para. 22.1|
|Filing of witness statements||Para. 23.1|
|Certificate of court officer||Para. 24.1|
|Defects in affidavits, witness statements and exhibits||Para. 25.1|
|STATEMENTS OF CASE||Para. 26.1|
|AGREED BUNDLES FOR HEARINGS||Para. 27.1|
|VIDEO CONFERENCING||Para. 29.1|
EVIDENCE IN GENERAL
1.1 Rule 32.2 sets out how evidence is to be given and facts are to be proved.
1.2 Evidence at a hearing other than the trial should normally be given by witness statement1(see paragraph 17 onwards). However a witness may give evidence by affidavit if he wishes to do so2 (and see paragraph 1.4 below).
1.3 Statements of case (see paragraph 26 onwards) and application notices3may also be used as evidence provided that their contents have been verified by a statement of truth4.
(For information regarding evidence by deposition see Part 34 and Practice Direction 34A.)
1.4 Affidavits must be used as evidence in the following instances:
(1) where sworn evidence is required by an enactment5, rule, order or practice direction, and
(2) in any application for a search order, a freezing injunction, or an order requiring an occupier to permit another to enter his land.
(By rule 81.4(1), unless and to the extent that the court directs otherwise every contempt application must be supported by written evidence given by affidavit or affirmation.).
1.5 If a party believes that sworn evidence is required by a court in another jurisdiction for any purpose connected with the proceedings, he may apply to the court for a direction that evidence shall be given only by affidavit on any pre-trial applications.
1.6 The court may give a direction under rule 32.15 that evidence shall be given by affidavit instead of or in addition to a witness statement or statement of case:
(1) on its own initiative, or
(2) after any party has applied to the court for such a direction.
1.7 An affidavit, where referred to in the Civil Procedure Rules or a practice direction, also means an affirmation unless the context requires otherwise.
2 A deponent is a person who gives evidence by affidavit or affirmation.
3.1 The affidavit should be headed with the title of the proceedings (see paragraph 4 of Practice Direction 7A and paragraph 7 of Practice Direction 20); where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows:
|A.B. (and others)||Claimants/Applicants|
|C.D. (and others)||Defendants/Respondents|
3.2 At the top right hand corner of the first page (and on the backsheet) there should be clearly written:
(1) the party on whose behalf it is made,
(2) the initials and surname of the deponent,
(3) the number of the affidavit in relation to that deponent,
(4) the identifying initials and number of each exhibit referred to, and
(5) the date sworn.
Body of affidavit
4.1 The affidavit must, if practicable, be in the deponent’s own words, the affidavit should be expressed in the first person and the deponent should:
(1) commence ‘I (full name) of (address) state on oath ……’,
(2) if giving evidence in his professional, business or other occupational capacity, give the address at which he works in (1) above, the position he holds and the name of his firm or employer,
(3) give his occupation or, if he has none, his description, and
(4) state if he is a party to the proceedings or employed by a party to the proceedings, if it be the case.
4.2 An affidavit must indicate:
(1) which of the statements in it are made from the deponent’s own knowledge and which are matters of information or belief, and
(2) the source for any matters of information or belief.
4.3 Where a deponent:
(1) refers to an exhibit or exhibits, he should state‘there is now shown to me marked ‘…’ the (description of exhibit)’, and
(2) makes more than one affidavit (to which there are exhibits) in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each affidavit.
5.1 The jurat of an affidavit is a statement set out at the end of the document which authenticates the affidavit.
5.2 It must:
(1) be signed by all deponents,
(2) be completed and signed by the person before whom the affidavit was sworn whose name and qualification must be printed beneath his signature,
(3) contain the full address of the person before whom the affidavit was sworn, and
(4) follow immediately on from the text and not be put on a separate page.
Format of affidavits
6.1 An affidavit should:
(1) be produced on durable quality A4 paper with a 3.5cm margin,
(2) be fully legible and should normally be typed on one side of the paper only,
(3) where possible, be bound securely in a manner which would not hamper filing, or otherwise each page should be endorsed with the case number and should bear the initials of the deponent and of the person before whom it was sworn,
(4) have the pages numbered consecutively as a separate document (or as one of several documents contained in a file),
(5) be divided into numbered paragraphs,
(6) have all numbers, including dates, expressed in figures, and
(7) give the reference to any document or documents mentioned either in the margin or in bold text in the body of the affidavit.
6.2 It is usually convenient for an affidavit to follow the chronological sequence of events or matters dealt with; each paragraph of an affidavit should as far as possible be confined to a distinct portion of the subject.
Inability of Deponent to read or sign affidavit
7.1 Where an affidavit is sworn by a person who is unable to read or sign it, the person before whom the affidavit is sworn must certify in the jurat that:
(1) he read the affidavit to the deponent,
(2) the deponent appeared to understand it, and
(3) the deponent signed or made his mark, in his presence.
7.2 If that certificate is not included in the jurat, the affidavit may not be used in evidence unless the court is satisfied that it was read to the deponent and that he appeared to understand it. Two versions of the form of jurat with the certificate are set out at Annex 1 to this practice direction.
Alterations to affidavits
8.1 Any alteration to an affidavit must be initialled by both the deponent and the person before whom the affidavit was sworn.
8.2 An affidavit which contains an alteration that has not been initialled may be filed or used in evidence only with the permission of the court.
Who may administer oaths and take affidavits
9.1 Only the following may administer oaths and take affidavits –
(1) a commissioner for oaths6;
(3) other persons specified by statute7;
(4) certain officials of the Senior Courts8;
(5) a circuit judge or district judge9;
(6) any justice of the peace10; and
(7) certain officials of any county court appointed by the judge of that court for the purpose11.
9.2 An affidavit must be sworn before a person independent of the parties or their representatives.
Filing of affidavits
10.1 If the court directs that an affidavit is to be filed12, it must be filed in the court or Division, or Office or Registry of the court or Division where the action in which it was or is to be used, is proceeding or will proceed.
10.2 Where an affidavit is in a foreign language:
(1) the party wishing to rely on it –
(a) must have it translated, and
(b) must file the foreign language affidavit with the court, and
(2) the translator must make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language affidavit.
Manner of exhibiting documents
11.1 A document used in conjunction with an affidavit should be:
(1) produced to and verified by the deponent, and remain separate from the affidavit, and
(2) identified by a declaration of the person before whom the affidavit was sworn.
11.2 The declaration should be headed with the name of the proceedings in the same way as the affidavit.
11.3 The first page of each exhibit should be marked:
(1) as in paragraph 3.2 above, and
(2) with the exhibit mark referred to in the affidavit.
12.1 Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top, and firmly secured.
12.2 When a bundle of correspondence is exhibited, the exhibit should have a front page attached stating that the bundle consists of original letters and copies. They should be arranged and secured as above and numbered consecutively.
13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.
13.2 Court documents must not be exhibited (official copies of such documents prove themselves).
13.3 Where an exhibit contains more than one document, a front page should be attached setting out a list of the documents contained in the exhibit; the list should contain the dates of the documents.
Exhibits other than documents
14.1 Items other than documents should be clearly marked with an exhibit number or letter in such a manner that the mark cannot become detached from the exhibit.
14.2 Small items may be placed in a container and the container appropriately marked.
15.1 Where an exhibit contains more than one document:
(1) the bundle should not be stapled but should be securely fastened in a way that does not hinder the reading of the documents, and
(2) the pages should be numbered consecutively at bottom centre.
15.2 Every page of an exhibit should be clearly legible; typed copies of illegible documents should be included, paginated with ‘a’ numbers.
15.3 Where affidavits and exhibits have become numerous, they should be put into separate bundles and the pages numbered consecutively throughout.
15.4 Where on account of their bulk the service of exhibits or copies of exhibits on the other parties would be difficult or impracticable, the directions of the court should be sought as to arrangements for bringing the exhibits to the attention of the other parties and as to their custody pending trial.
16 All provisions in this or any other practice direction relating to affidavits apply to affirmations with the following exceptions:
(1) the deponent should commence ‘I (name) of (address) do solemnly and sincerely affirm ……’, and
(2) in the jurat the word ‘sworn’ is replaced by the word ‘affirmed’.
17.1 The witness statement should be headed with the title of the proceedings (see paragraph 4 of Practice Direction 7A and paragraph 7 of Practice Direction 20); where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows:
|A.B. (and others)||Claimants/Applicants|
|C.D. (and others)||Defendants/Respondents|
17.2 At the top right hand corner of the first page there should be clearly written:
(1) the party on whose behalf it is made,
(2) the initials and surname of the witness,
(3) the number of the statement in relation to that witness,
(4) the identifying initials and number of each exhibit referred to,
(5) the date the statement was made; and
(6) the date of any translation.
Body of witness statement
18.1 The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language, the statement should be expressed in the first person and should also state:
(1) the full name of the witness,
(2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer,
(3) his occupation, or if he has none, his description,
(4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case; and
(5) the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter.
18.2 A witness statement must indicate:
(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and
(2) the source for any matters of information or belief.
18.3 An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement.
18.4 Where a witness refers to an exhibit or exhibits, he should state ‘I refer to the (description of exhibit) marked‘…’’.
18.5 The provisions of paragraphs 11.3 to 15.4 (exhibits) apply similarly to witness statements as they do to affidavits.
18.6 Where a witness makes more than one witness statement to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement.
Format of witness statement
19.1 A witness statement should:
(1) be produced on durable quality A4 paper with a 3.5cm margin,
(2) be fully legible and should normally be typed on one side of the paper only,
(3) where possible, be bound securely in a manner which would not hamper filing, or otherwise each page should be endorsed with the case number and should bear the initials of the witness,
(4) have the pages numbered consecutively as a separate statement (or as one of several statements contained in a file),
(5) be divided into numbered paragraphs,
(6) have all numbers, including dates, expressed in figures,
(7) give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement ; and
(8) be drafted in the witness’s own language.
19.2 It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with, each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.
Statement of Truth
20.1 A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence; it must include a statement by the intended witness in their own language that they believe the facts in it are true13.
20.2 To verify a witness statement the statement of truth is as follows:
‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
20.3 Attention is drawn to rule 32.14 which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth.
(Paragraph 3A of Practice Direction 22 sets out the procedure to be followed where the person who should sign a document which is verified by a statement of truth is unable to read or sign the document other than by reason of language alone.)
Alterations to witness statements
22.1 Any alteration to a witness statement must be initialled by the person making the statement or by the authorised person where appropriate (see paragraph 21).
22.2 A witness statement which contains an alteration that has not been initialled may be used in evidence only with the permission of the court.
Filing of witness statements
23.1 If the court directs that a witness statement is to be filed14, it must be filed in the court or Division, or Office or Registry of the court or Division where the action in which it was or is to be used, is proceeding or will proceed.
23.2 Where a witness statement is in a foreign language—
(a) the party wishing to rely on it must—
(i) have it translated; and
(ii) file the foreign language witness statement with the court; and
(b) the translator must sign the original statement and must certify that the translation is accurate.
Certificate of court officer
24.1 Where the court has ordered that a witness statement is not to be open to inspection by the public15or that words or passages in the statement are not to be open to inspection16 the court officer will so certify on the statement and make any deletions directed by the court under rule 32.13(4).
Defects in affidavits, witness statements and exhibits
(1) an affidavit,
(2) a witness statement, or
(3) an exhibit to either an affidavit or a witness statement,
does not comply with Part 32 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.
25.2 Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge17in the court where the case is proceeding.
STATEMENTS OF CASE
26.1 A statement of case may be used as evidence in an interim application provided it is verified by a statement of truth18.
26.2 To verify a statement of case the statement of truth should be set out as follows:
‘[I believe][the (party on whose behalf the statement of case is being signed) believes] that the facts stated in the statement of case are true’.
26.3 Attention is drawn to rule 32.14 which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth.
(For information regarding statements of truth see Part 22 and Practice Direction 22.)
(Practice Directions 7A and 17 provide further information concerning statements of case.)
AGREED BUNDLES FOR HEARINGS
27.1 The court may give directions requiring the parties to use their best endeavours to agree a bundle or bundles of documents for use at any hearing.
27.2 All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –
(1) the court orders otherwise; or
(2) a party gives written notice of objection to the admissibility of particular documents.
27.3 Rule 39.5 provides that unless the court orders otherwise, the claimant must file a trial bundle containing documents required by—
(a) a relevant practice direction; and
(b) any court order.
27.4 Rule 39.5 provides that the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.
27.4A If the trial is to take place in the Family Division, then Practice Direction 27A supplementing the Family Procedure Rules 2010 shall apply to provide what must happen in relation to the trial bundle in place of paragraphs 27.5 to 27.15 below.
27.5 Unless the court orders otherwise, the trial bundle should include a copy of—
(a) the claim form and all statements of case;
(b) a case summary and/or chronology where appropriate;
(c) requests for further information and responses to the requests;
(d) all witness statements to be relied on as evidence;
(e) any witness summaries;
(f) any notices of intention to rely on hearsay evidence under rule 32.2;
(g) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not—
(i) contained in a witness statement, affidavit or experts’ report;
(ii) being given orally at trial; and
(iii) hearsay evidence under rule 33.2;
(h) any medical reports and responses to them;
(i) any experts’ reports and responses to them;
(j) any order giving directions as to the conduct of the trial; and
(k) any other necessary documents.
27.6 The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial.
27.7 The preparation and production of the trial bundle, even where it is delegated to another person, is the responsibility of the legal representative who has conduct of the claim on behalf of the claimant. If the claimant is unrepresented, the court may direct that another party must prepare and produce the trial bundle.
27.8 The trial bundle should be paginated (continuously) throughout, and indexed with a description of each document and the page number. Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents.
27.9 The bundle should normally be contained in a ring binder or lever arch file. Where more than one bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. If there are numerous bundles, a core bundle should be prepared containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles.
27.10 For convenience, experts’ reports may be contained in a separate bundle and cross referenced in the main bundle.
27.11 If a document to be included in the trial bundle is illegible, a typed copy should be included in the bundle next to it, suitably cross-referenced.
27.12 The contents of the trial bundle should be agreed where possible. The parties should also agree where possible—
(a) that the documents contained in the bundle are authentic even if not disclosed under Part 31; and
(b) that documents in the bundle may be treated as evidence of the facts stated in them even if a notice under the Civil Evidence Act 1995 has not been served.
Where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included.
27.13 The party filing the trial bundle should supply identical bundles to all the parties to the proceedings and for the use of the witnesses.
27.14 Unless the court otherwise directs, contemporaneous documents in the trial bundle relied on by the parties or either of them should be assembled as a single unit in chronological order of creation.
27.15 Unless the court otherwise directs, documents in the trial bundle should be copied double-sided.”.
28.1 1 Where a party alleges that a statement of truth or a disclosure statement is false the party must refer that allegation to the court dealing with the claim in which the statement of truth or disclosure statement has been made. 2 The court may – a excercise any of its powers under the rules; b initiate steps to consider if there is a contempt of court and, where there is, to punish it; (Practice Direction RSC 52 and CCR 29 makes provision where committal to prison is a possibility if contempt is proved) c direct the party making the allegation to refer the matter to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court. 28.2 1 A request to the Attorney General must be made in writing and sent to the Attorney General’s Office at 20 Victoria Street, London, SW1H 0NF. The request must be accompanied by a copy of the order directing that the matter be referred to the Attorney General and must – a identify thestatement said to be false; b explain – i why it is false; and ii why the maker knew the statement to be false at the time it was made; and c explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1. 2 The Attorney General prefers a request that comes from the court to one made direct by a party to the claim in which the alleged contempt occurred without prior consideration by the court. A request to the Attorney General is not a way of appealing against, or reviewing the decision of the judge. 28.3 Where a party makes an application to the court for permission to commence proceedings for contempt of court, it must be supported by written evidence of the facts and matters specified in paragraph 28.2(1) and the result of the request to the Attorney General made by the applicant. 28.4 The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complainedof does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1 of the Civil Procedure Rules.
29.1 Guidance on the use of video conferencing in the civil courts is set out at Annex 3 to this practice direction.
A list of the sites which are available for video conferencing can be found on HM Courts and Tribunals Service website.
Certificate to be used where a deponent to an affidavit is unable to read or sign it
Sworn at ……… this …… day of ……… Before me, I having first read over the contents of this affidavit to the deponent [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his mark on the affidavit in my presence.
Or; (after, Before me) the witness to the mark of the deponent having been first sworn that he had read over etc. (as above) and that he saw him make his mark on the affidavit. (Witness must sign).
Certificate to be used where a deponent to an affirmation is unable to read or sign it
Affirmed at ……… this …… day of ……… Before me, I having first read over the contents of this affirmation to the deponent [if there are exhibits,add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his mark on the affirmation in my presence.
Or, (after, Before me) the witness to the mark of the deponent having been first sworn that he had read over etc. (as above) and that he saw him make his mark on the affirmation. (Witness must sign).
VIDEO CONFERENCING GUIDANCE
This guidance is for the use of video conferencing (VCF) in civil proceedings. It is in part based, with permission, upon the protocol of the Federal Court of Australia. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise.
Video conferencing generally
1. The guidance covers the use of VCF equipment both (a) in a courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. In either case, the location at which the judge sits is referred to as the ‘local site’. The other site or sites to and from which transmission is made are referred to as ‘the remote site’ and in any particular case any such site may be another courtroom. The guidance applies to cases where VCF is used for the taking of evidence and also to its use for other parts of any legal proceedings (for example, interim applications, case management conferences, pre-trial reviews).
2. VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. 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 will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised 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.
3. When used for the taking of evidence, the objective should be to make the VCF session as close as possible to the usual practice in a trial court where evidence is taken in open court. To gain the maximum benefit, several differences have to be taken into account. Some matters, which are taken for granted when evidence is taken in the conventional way, take on a different dimension when it is taken by VCF: for example, the administration of the oath, ensuring that the witness understands who is at the local site and what their various roles are, the raising of any objections to the evidence and the use of documents.
4. It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (Legalisation Office) firstname.lastname@example.org with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8 below) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.
5. Time zone differences need to be considered when a witness abroad is to be examined in England or Wales by VCF. The convenience of the witness, the parties, their representatives and the court must all be taken into account. The cost of the use of a commercial studio is usually greater outside normal business hours.
6. Those involved with VCF need to be aware that, even with the most advanced systems currently available, there are the briefest of delays between the receipt of the picture and that of the accompanying sound. If due allowance is not made for this, there will be a tendency to ‘speak over’ the witness, whose voice will continue to be heard for a millisecond or so after he or she appears on the screen to have finished speaking.
7. With current technology, picture quality is good, but not as good as a television picture. The quality of the picture is enhanced if those appearing on VCF monitors keep their movements to a minimum.
8. The court's permission is required for any part of any proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the listing officer, diary manager or other appropriate court officer of the intention to seek it, and should enquire as to the availability of court VCF equipment for the day or days of the proposed VCF. The application for a direction should be made to the Master, District Judge or Judge, as may be appropriate. If all parties consent to a direction, permission can be sought by letter, fax or e-mail, although the court may still require an oral hearing. All parties are entitled to be heard on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. If a VCF direction is given, arrangements for the transmission will then need tobe made. The court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter referred to as ‘the VCF arranging party’.
9. Subject to any order to the contrary, all costs of the transmission, including the costs of hiring equipment and technical personnel to operate it, will initially be the responsibility of, and must be met by, the VCF arranging party. All reasonable efforts should be made to keep the transmission to a minimum and so keep the costs down. All such costs will be considered to be part of the costs of the proceedings and the court will determine at such subsequent time as is convenient or appropriate who, as between the parties, should be responsible for them and (if appropriate) in what proportions.
10. The local site will, if practicable, be a courtroom but it may instead be an appropriate studio or conference room. The VCF arranging party must contact the listing officer, diary manager or other appropriate officer of the court which made the VCF direction and make arrangements for the VCF transmission. Details of the remote site, and of the equipment to be used both at the local site (if not being supplied by the court) and the remote site (including the number of ISDN lines and connection speed), together with all necessary contact names and telephone numbers, will have to be provided to the listing officer, diary manager or other court officer. The court will need to be satisfied that any equipment provided by the parties for use at the local site and also that at the remote site is of sufficient quality for a satisfactory transmission. The VCF arranging party must ensure that an appropriate person will be present at the local site to supervise the operation of the VCF throughoutthe transmission in order to deal with any technical problems. That party must also arrange for a technical assistant to be similarly present at the remote site for like purposes.
11. It is recommended that the judge, practitioners and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission.
12. If the local site is not a courtroom, but a conference room or studio, the judge will need to determine who is to sit where. The VCF arranging party must take care to ensure that the number of microphones is adequate for the speakers and that the panning of the camera for the practitioners' table encompasses all legal representatives so that the viewer can see everyone seated there.
13. The proceedings, wherever they may take place, form part of a trial to which the public is entitled to have access (unless the court has determined that they should be heard in private). If the local site is to be a studio or conference room, the VCF arranging party must ensure that it provides sufficient accommodation to enable a reasonable number of members of the public to attend.
14. In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the royal coat of arms to be placed above the judge's seat.
15. In cases in which the VCF is to be used for the taking of evidence, the VCF arranging party must arrange for recording equipment to be provided by the court which made the VCF direction so that the evidence can be recorded. An associate will normally be present to operate the recording equipment when the local site is a courtroom. The VCF arranging party should take steps to ensure that an associate is present to do likewise when it is a studio or conference room. The equipment should be set up and tested before the VCF transmission. It will often be a valuable safeguard for the VCF arranging party also to arrange for the provision of recording equipment at the remote site. This will provide a useful back-up if there is any reduction in sound quality during the transmission. A direction from the court for the making of such a back-up recording must, however, be obtained first. This is because the proceedings are court proceedings and, save as directed by the court, no other recording of them must be made. The court will direct what is to happen to the back-up recording.
16. Some countries may require that any oath or affirmation to be taken by a witness accord with local custom rather than the usual form of oath or affirmation used in England and Wales. The VCF arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in England and Wales, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. The associate will normally administer the oath.
17. Consideration will need to be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree on this. It will usually be most convenient for a bundle of the copy documents to be prepared in advance, which the VCF arranging party should then send to the remote site.
18. Additional documents are sometimes quite properly introduced during the course of a witness's evidence. To cater for this, the VCF arranging party should ensure that equipment is available to enable documents to be transmitted between sites during the course of the VCF transmission. Consideration should be given to whether to use a document camera. If it is decided to use one, arrangements for its use will need to be established in advance. The panel operator will need to know the number and size of documents or objects if their images are to be sent by document camera. In many cases, a simpler and sufficient alternative will be to ensure that there are fax transmission and reception facilities at the participating sites.
19. The procedure for conducting the transmission will be determined by the judge. He will determine who is to control the cameras. In cases where the VCF is being used for an application in the course of the proceedings, the judge will ordinarily not enter the local site until both sites are on line. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. The following paragraphs apply primarily to cases where the VCF is being used for the taking of the evidence of a witness at a remote site. In all cases, the judge will need to decide whether court dress is appropriate when using VCF facilities. It might be appropriate when transmitting from courtroom to courtroom. It might not be when a commercial facility is being used.
20. At the beginning of the transmission, the judge will probably wish to introduce himself and the advocates to the witness. He will probably want to know who is at the remote site and will invite the witness to introduce himself and anyone else who is with him. He may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence. He will probably wish to explain to the witness the method of taking the oath or of affirming, the manner in which the evidence will be taken, and who will be conducting the examination and cross-examination. He will probably also wish to inform the witness of the matters referred to in paragraphs 6 and 7 above (co-ordination of picture with sound, and picture quality).
21. The examination of the witness at the remote site should follow as closely as possible the practice adopted when a witness is in the courtroom. During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question and also any other person (whether another legal representative or the judge) making any statements in regard to the witness's evidence. It will in practice be most convenient if everyone remains seated throughout the transmission.
- See rule 32.6(1). Back to text
- See rule 32.15(2). Back to text
- See Part 23 for information about making an application. Back to text
- Rule 32.6(2) and see Part 22 for information about the statement of truth. Back to text
- See, e.g., s.3(5)(a) of the Protection from Harassment Act 1997. Back to text
- Commissioner for Oaths Act 1889 and 1891. Back to text
- Sections 12 and 18 of, and Schedules 2 and 4 to, the Legal Services Act 2007. Back to text
- Section 2 of the Commissioners for Oaths Act 1889. Back to text
- Section 58 of the County Courts Act 1984. Back to text
- Section 58 as above. Back to text
- Section 58 as above. Back to text
- Rules 32.1(3) and 32.4(3)(b). Back to text
- See Part 22 for information about the statement of truth. Back to text
- Rule 32.4(3)(b). Back to text
- Rule 32.13(2). Back to text
- Rule 32.13(4). Back to text
- Rule 2.3(1); definition of judge. Back to text
- See rule 32.6(2)(a). Back to text