Trial Judge's Role as Special Examiner Abroad: Balancing Justice and Practicality in Skatteforvaltningen v Solo Capital Partners LLP & Ors

Citation: [2024] EWHC 19 (Comm)
Judgment on

Introduction

In the case of Skatteforvaltningen v Solo Capital Partners LLP & Ors, Justice Andrew Baker assesses the appropriateness of a trial judge acting as a special examiner under CPR 34.13(4) to take deposition evidence abroad during an ongoing trial. The analysis revolves around whether such an approach is conducive to the interests of justice, taking into consideration factors like the quality and presentation of evidence, fairness, and practical implications for the conduct of the trial.

Key Facts

The DWF Defendants, unable to travel to London for trial due to a European Arrest Warrant and a Dubai-imposed travel ban, requested that the trial be adjourned and their evidence taken in Dubai, with the trial judge appointed as a special examiner. This approach aimed to avoid perceived quality loss in evidence given remotely. The Claimant, Skatteforvaltningen (the Danish Customs and Tax Administration), opposed this on grounds including the sub-optimal nature of conducting evidence outside the trial and the introduction of potential inequalities and practical challenges.

Several legal principles and rules were pivotal in this case analysis:

  1. CPR 32.2 and 32.1: These allow the court to control the evidence by directing the manner in which it is presented at trial. They embody the general rule that evidence should be given orally at trial unless otherwise ordered by the court.

  2. CPR 34.13(4): This allows a special examiner to be appointed to take evidence outside of the jurisdiction if permitted by the government of the country where the deposition takes place. The appointment of a judge as a special examiner has been previously contemplated in cases like Peer International Corp v Termidor Music Publishers Ltd and Attorney General of Zambia v Meer Care & Desai et al.

  3. CPR 34.8: This pertains to the ordering of pre-trial depositions but assumes examinations will occur before the trial, raising questions over post-trial commencement depositions.

  4. DIFC Court Rules: These rules allude to the procedure for taking depositions within the Dubai International Financial Centre (DIFC) jurisdiction.

Justice Baker’s analysis also considered judicial duty and role, questioning whether a judge could appropriately suspend their trial duties to act as a special examiner abroad, and the practice’s historical precedent and operational propriety.

Outcomes

Justice Baker concluded that the disadvantages of taking evidence as proposed by the DWF Defendants would exceed the supposed advantages. His decision hinged on several points:

  • The marginal benefit of the trial judge being present in person as a special examiner was deemed overstated and potentially not proper since a deposition is not part of the trial but evidence to be used at trial.
  • Remote witness testimony, if managed properly, would not significantly lose quality compared to in-person testimony.
  • Practical and cost implications of an examination abroad are notable, entailing unjustified additional litigation costs.
  • Potential unfairness might arise due to procedural differences in evidence-taking for parties who could not attend a Dubai examination.
  • A preference for evidence to be given at trial, in public, for equality and transparency, aligning with the general rule vested in CPR 32.2.

Conclusion

The judgment in Skatteforvaltningen v Solo Capital Partners LLP & Ors reaffirms the principle that evidence is ideally to be given and assessed within the context of the trial and in public, highlighting the limitations in reconsiderating this traditional approach. The decision underscores the necessity for judicial office commitment to the trial process and ensures that litigants face equal conditions, especially in complex and high-stakes litigation. The court’s refusal to accede to the application reflects a balancing act between the integrity of the trial process and the practical realities of contemporary, international litigation.