Virtual Cross-examination: A Bridge Too Far In A Brave New World?

• Published date: 21 September 2020
• Subject Matter: Strategy, Coronavirus (COVID-19), Technology, Operational Impacts and Strategy
• Law Firm: Carey Olsen
• Author: Christopher Tan

Even in the pre-COVID world, the cross-border nature of complex commercial litigation in Jersey and around the world often meant that plaintiffs, claimants, assets, and - crucially - witnesses, could be located in different jurisdictions.

Following the enactment of emergency COVID legislation in Jersey some months ago¹, our judiciary introduced various measures to ensure that the administration of justice would continue in a timely and robust way.² In some ways, this has catalysed a shift towards normalising virtual hearings.

However, one area where courts are understandably less eager to embrace technology is cross-examinations. As a general principle of fairness, real-time, face-to-face cross examination is a valuable way to test evidence because a witnesses' body language can form a crucial part of a judge's assessment of how truthful or reliable a witness really is - and some disputes will turn on such issues more than others.³ This particular issue was recently considered by the Royal Court in Trico Ltd v Buckingham, which will be considered in more depth in this article.⁴

Legal Position

In Jersey, it is possible for cross-examination to be done via videolink (or equivalent means where parties can communicate without physically appearing in court). This may be ordered under the Royal Court Rules or under the court's inherent jurisdiction.⁵ This can be attractive for logistical ease, such as where a witness cannot easily travel to Jersey through no fault of their own, and to avoid rescheduling trial dates.⁶ However, this is 'not yet a mere optional alternative': virtual cross-examination should only be permitted for 'good reason' where doing so would be in the interests of justice. This is something that has to be assessed broadly based on the particular facts of each case.⁷

Trico: A Case Study

The Trico decision is a good illustration of how this might look in practice: there, two witnesses, the defendant and his partner, had asked to be cross-examined virtually. Permission was granted in one case but refused in the other.⁸

The defendant had asked for virtual cross-examination as he was older. In light of the ongoing COVID pandemic, he might be more vulnerable to the disease (and therefore wished to minimise having to leave his home). However, no medical evidence had been provided in support of this, and the judge considered that he was a key witness. Further, 'credibility and major differences in recollection' were at the heart of the dispute so it...