IAN McGLINN v 1) Waltham Contractors Ltd 2) Huw Thomas Associates 3) DJ Hartigan Associates Ltd 4) Wilson Large Partners (No. 2)
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE PETER COULSON QC |
| Judgment Date | 15 September 2006 |
| Neutral Citation | [2006] EWHC 2322 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | No.HT-05-120 |
| Date | 15 September 2006 |
[2006] EWHC 2322 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY & CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
His Honour Judge Peter Coulson QC
No.HT-05-120
MR. ADRIAN WILLIAMSON QC and MR JONATHAN SELBY ( instructed by Speechly Bircham) appeared on behalf of the Claimant.
MR. ANDREW BARTLETT QC and MR GAVIN HAMILTON ( instructed by Freeth Cartwright LLP) appeared on behalf of the Second Defendant.
MR. JOHN WHITTING ( instructed by Beale & Co,) appeared on behalf of the Third Defendant.
MR. COLIN REESE QC and MR. ANDREW WARNOCK ( instructed by PI Brokerlink) appeared for the Fourth Defendant.
This action concerns the alleged existence of major defects in the large house that the Claimant, Mr. Ian McGlinn, had built in Jersey between 1998 and 2002. It is his case that, so extensive were these defects, the house had to be demolished and rebuilt. The First Defendant, who were the building contractors, are in administration and are playing no part in these proceedings. The Second, Third and Fourth Defendants were the relevant professional team being, respectively, the architects, the mechanical and electrical engineers, and the quantity surveyors. The trial of the defects case, where the damages claimed are in the region of £4 million, is due to commence next month. The Claimant lives abroad and has been resident abroad, on the material that I have seen, for about 20 years.
By an application dated 11 th September 2006, the Claimant seeks an order, pursuant to CPR 32.3, that he is allowed to give evidence by means of a video link rather than coming personally to the trial in London. The reason for the application is a little unusual. It is said that, if the Claimant comes to London to give evidence, there is a real risk that he will be liable to pay Capital Gains Tax of about £50 million, in relation to the money he recently made when he sold his substantial shareholdings in The Body Shop organisation.
The court has a wide discretion under CPR 32.3. Annexe 3 to the Practice Direction that accompanies Part 32 says at para.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 very case in which the use of VCF is being considered, not only as to whether it will achieve an overall costs 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".
This rule has recently been the subject of detailed scrutiny by the House of Lords in Polanski v Conde Nast Publications Ltd [2005] 1 WLR 637.In that case the film director, Mr. Roman Polanski, who was pursuing the publishers of "Vanity Fair" in a libel action in the UK, wanted an order under CPR 32.3 that he be allowed to give his evidence by video link. His concern was that if he came to London to give evidence personally, he faced the real risk of arrest and extradition to the United States of America where, in the late 1970's, he pleaded guilty to unlawful sexual intercourse with a 13 year old girl before fleeing the country. He was therefore properly described as "a fugitive from justice".
Eady J granted the order for a video link but the Court of Appeal overturned that decision. In the House of Lords, by a majority, the Judge's ruling was reinstated. It is important to note that all five of their Lordships considered that, as between the parties, the video link order had been rightly made. Mr. Polanski would have been severely prejudiced if the order had not been made, whilst the making of the order had no prejudicial effect upon the defendants. The point on which their Lordships were divided was the public policy question of whether the courts should be seen as assisting a fugitive from justice.
On that point, the majority decided that the public policy consideration did not outweigh the other factors in favour of the order. Lord Nicholls of Birkenhead said:
"30 I understand the intuitive dislike of relieving a fugitive of a disadvantage which until recently was inherent in his self-created
status …
31 … But overall the matter which weighs most with me is this. Despite his fugitive status, a fugitive from justice is entitled to invoke the assistance of the court and its procedures in protection of his civil rights. He can bring or defend proceedings even though he is and remains a fugitive. If the administration of justice is not brought into disrepute by a fugitive's ability to have recourse to the court to protect his civil rights, even though he is and remains a fugitive, it is difficult to see why the administration of justice should be regarded as brought into disrepute by permitting the fugitive to have recourse to one of the court's current procedures which will enable him in a particular case to pursue his proceedings while remaining a fugitive."
With these points in mind, I now turn to the Claimant's application in the present case. It is opposed by all the Defendants in very clear terms. They say:
(a) There is no evidence of any risk that a visit to London by the Claimant will lead to any substantial CGT liability.
(b) There would be prejudice to the Defendants if the order was made because the Claimant would not be subject to...
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