Polanski v The Conde Nast Publications Ltd
| Jurisdiction | UK Non-devolved |
| Judge | THE LORD NICHOLLS OF BIRKENHEAD,LORD SLYNN OF HADLEY,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD CARSWELL |
| Judgment Date | 10 February 2005 |
| Neutral Citation | [2005] UKHL 10 |
| Court | House of Lords |
| Date | 10 February 2005 |
[2005] UKHL 10
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
HOUSE OF LORDS
My Lords,
Condé Nast Publications Ltd publishes the magazine 'Vanity Fair' in this country. Roman Polanski, the celebrated film director, is suing Condé Nast for libel in respect an article included in the July 2002 edition of this magazine.
The words of which Mr Polanski complains refer to an incident said to have taken place 35 years ago. On the night of 8 August 1969 Mr Polanski's wife, the actress Sharon Tate, was murdered at their home in California USA by members of the so-called 'Manson Family'. Mr Polanski was working in London at the time. He flew to California and remained there until after his wife's funeral on 13 August 1969. On his return journey from Los Angeles to London he stopped in New York. He went to 'Elaine's' restaurant. There he met the actress Mia Farrow. That was on 27 August 1969 or thereabouts.
The July 2002 edition of 'Vanity Fair' contained a feature article about 'Elaine's'. The article included the following passage:
'"The thing about Elaine's", says Lewis Lapham, "is that nobody will allow himself to be impressed by anybody. You could say, 'I just sold 17,000 copies of my book today', and they'd ask what you did yesterday. The only time I ever saw people gasp in Elaine's was when Roman Polanski walked in just after his wife Sharon Tate had been viciously murdered by the Manson clan. I was sitting at a table with a friend of mine who had brought the most gorgeous Swedish girl you ever laid eyes on. I don't think I've ever seen a more beautiful woman. Polanski came over and asked to join us. It turned out that Polanski had been in London when the atrocity took place, and he was on his way back to Hollywood for the burial. The Swedish beauty was sitting next to me. Polanski pulled up a chair and inserted himself between us, immediately focusing his attention on the beauty, inundating her with his Polish charm. Fascinated by his performance, I watched as he slid his hand inside her thigh and began a long, honeyed spiel which ended with the promise 'And I will make another Sharon Tate out of you'".'
Mr Polanski sought a correction and apology. Condé Nast refused. Condé Nast was willing to consider for publication a letter setting out Mr Polanski's position, but its solicitors said 'our clients stand by their story'. Mr Polanski began these proceedings on 20 August 2002. It is now common ground that, contrary to what was stated in the 'Vanity Fair' article, the meeting at Elaine's took place on Mr Polanski's return journey to London after his wife's burial.
The trial of these proceedings has yet to take place. There are three issues in the proceedings. The first issue concerns the meaning of the words. Mr Polanski's case is that the words bear the following defamatory meanings: that on his way to attend the burial of his wife, who had just been viciously murdered, he had stopped in New York and publicly and shamefully seduced the female companion of one of the other customers at Elaine's; that as an inducement for her sexual favours he had promised to make the girl famous; and that by this conduct he had shown such appalling and callous indifference to the fate of his murdered wife that even the hardened regulars of Elaine's had gasped in astonishment. No evidence is admissible on this issue.
The second issue is justification. Condé Nast allege that the words were true in so far as they bear the meaning that, even though his wife had just been viciously murdered, Mr Polanski showed a callous indifference to her memory by shamelessly exploiting her name and the prospect of emulating her fame in order to make sexual advances to another man's female companion whom he had only just met in a restaurant. This allegation of fact is denied by Mr Polanski. At the trial he will rely primarily on his own evidence and that of Ms Farrow. Condé Nast will rely on the evidence of Mr Lapham and the 'friend of mine' to whom the article referred, Mr Edward Perlberg. The third issue is damages.
Thus far Mr Polanski's proceedings are straightforward. But there is a complication, which has given rise to this interlocutory appeal. Mr Polanski is a fugitive from justice. In August 1977 he pleaded guilty before a Californian court to a charge of unlawful sexual intercourse with a girl aged 13 years. He underwent tests ordered by the court, spending 42 days in the state penitentiary for this purpose. He then fled from the United States before he was sentenced. He returned to his home in France. As a French citizen he cannot be extradited from France to the United States. Since then he has never visited the United States again. Nor has he ever returned to the United Kingdom. If he came to this country he would be at risk of being extradited to the USA.
In these circumstances Mr Polanski has said he will not come to this country to give oral evidence at the trial of his libel action. Instead, he has sought a pre-trial direction that he may be allowed to give his evidence from France by means of a video link, pursuant to CPR 32.3. This rule provides the court 'may allow a witness to give evidence through a video link or by other means'.
Eady J gave this direction on 9 October 2003. The judge said the reason underlying the application was unattractive, but this did not justify depriving Mr Polanski of his chance to have his case heard at trial. The Court of Appeal, comprising Simon Brown, Jonathan Parker and Thomas L JJ, discharged the judge's order: [2004] 1 WLR 387. The general policy of the courts should be to discourage litigants from escaping the normal processes of the law rather than to facilitate this. The judge's order overlooked and undermined this policy. Giving evidence by video conference link is not yet the procedural norm. Mr Polanski is seeking an indulgence from the court. In denying him that indulgence the court is not shutting him out from access to justice; the choice is entirely his.
The question raised by this appeal is whether, as the Court of Appeal held, the judge misdirected himself in principle when exercising his discretion in favour of permitting Mr Polanski to give his evidence by video conference link. The issue is whether the administration of justice would be brought into disrepute if the judge's order were allowed to stand.
The parties' interests
One matter is clear. There can be no doubt that, as between Mr Polanski and Condé Nast, the judge's order was rightly made. The Practice Direction supplementing CPR Part 32 provides that when the use of video conferencing is being considered a judgment must be made on cost saving and on whether use of video conferencing 'will be likely to be beneficial to the efficient, fair and economic disposal of the litigation'. As between the parties that test is satisfied in the present case.
Several points can be noted in this regard. First, there is no question of this libel action being an abuse of the process of the court. True it is that the principal circulation of 'Vanity Fair' is in the United States of America: 1.13million copies at the relevant time. Its circulation in Europe is much smaller. In mid-2002 the circulation of the magazine in England and Wales was 53,000 copies and in France 2,500 copies. It is also true that Mr Polanski has not set foot in England since February 1978. His home is in France and has been so for more than 25 years. But Mr Polanski's reputation is international. Despite the facts just mentioned Condé Nast does not suggest Mr Polanski's choice of England as the forum for his proceedings is improper. He is entitled to bring this action in this country in respect of the publication of the offending article which took place here. Thus the question is not whether the action should be tried here. The question is how it should be tried.
Next, objections about the form in which evidence may be given at the trial usually arise when one party claims a particular course would be prejudicial to him in the conduct of the litigation. That is not so in the present case. Condé Nast has no relevant interest in Mr Polanski being required to give his evidence in person in court. A direction that Mr Polanski's evidence may be given by means of video conferencing, or 'VCF' in short, would not prejudice Condé Nast to any significant extent. If anything, as Simon Brown LJ observed, any prejudice would more likely be suffered by Mr Polanski, by reason of the lessened impact of his evidence and celebrity status on the jury.
Condé Nast does not suggest otherwise. Improvements in technology enable Mr Polanski's evidence to be tested as adequately if given by VCF as it could be if given in court. Eady J, an experienced judge, said that cross-examination takes place 'as naturally and freely as when a witness is present in the court room'. Thomas LJ said that in his recent experience as a trial judge, giving evidence by VCF is a 'readily acceptable alternative' to giving evidence in person and an 'entirely satisfactory means of giving evidence' if there is sufficient reason for departing from the normal rule that witnesses give evidence in person before the court: [2004] 1 WLR 387, 402. Whether Mr Polanski's reason is sufficient is the all-important question to which I shall return.
Thirdly, if a VCF order is refused Mr Polanski will be gravely handicapped in the conduct of these proceedings. In practice he will either abandon his action or, possibly, continue but under the serious disadvantage that his oral evidence on the...
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Subject Index
...89, 90Platt v HM Advocate 2004 SLT 333 ...........1 39Polanski v Condé Nast Publications Ltd[2005] UKHL 10 ...........................................2 31Police v Machirus [1977] 1 NZLR 288....... 1 21Pollitt v R (1992) 174 CLR 558 ..................... 111Polycarpou v Australian Wine Indus......
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...114, 117, 123, 231 Pitman Training Ltd & Anor v. Nominet UK & Anor, [1997] EWHC Ch 367 ...................... 451 Polanski v. Conde Nast, [2005] UKHL 10 .................................................................................... 173 Porter v. Robinson Sheppard Shapiro et al., (2004......
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