Remote hearing “did not stop witness admitting he had lied”


Davis-White: Disadvantages should not be overemphasised

Holding a trial over the validity of a will remotely may have helped a witness admit that the contents of his affidavit were not true, the High Court has suggested.

His Honour Judge Davis-White QC, sitting as a High Court judge in Leeds, said the fully remote trial also did not cause him any difficulties in reaching a decision and the disadvantages of remote hearings should not be “overemphasised”.

In The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch), the judge ruled that a will was not validly attested and probate of a £3.2m estate should be revoked. The turning point was when the last defendant witness admitted in his evidence in chief that his affidavit about witnessing the will was not true.

Commenting on the hearing being held entirely remotely, HHJ Davis-White acknowledged that it placed “a barrier” between the participants that was not present when everyone was in court, but said it “should not be overemphasised”.

He explained: “As the court has said in many cases… demeanour of a witness is an uncertain guide to the reliability of evidence, far more important is the substance of the evidence given, its internal consistency and its consistency with contemporaneous documents and the inherent probabilities.

“Further… there is no evidence as to whether the solemnity of being in a courtroom rather than giving evidence remotely is more conducive to the telling of the truth or the giving of better evidence and it may depend upon the individual in any event.”

Here, the fact that the evidence was given remotely did not prevent the witness “feeling that he had to tell the truth orally”, the judge observed.

“Indeed, it is possible, though I speculate, that it was easier for him to admit the truth in an environment where he was not being faced with the defendant in the same courtroom.

“In any event, I did not find that the hearing being remote rather than face to face operated in a manner that made me consider that a face to face hearing would have been more helpful in me reaching my assessment of the evidence and the conclusions that I have reached.”

HHJ Davis-White said the benefits of the remote hearing had included the person in Dubai who was giving instructions on behalf of the claimant, as well as a claimant witness, having access throughout the trial “and not simply a remote connection for each of them whilst they were giving evidence”.

He added: “The other main benefit was, of course, reducing footfall through the court and general dangers from Covid-19 virus, inherent in travel and the need for witnesses and others to travel to Leeds and stay overnight.”

Ruling that the defence was false and was supported by the false evidence of the two supposed witnesses to the will, the judge referred the case to the Director of Public Prosecutions.




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