Welcome to the thirty-second edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2015
Harb v Aziz
Whether the court has the power to order a foreign witness to attend court
A statement from a foreign witness that is hearsay can be admitted and read at court by means of a hearsay notice. If one party puts in hearsay evidence of a statement then, with the court's permission, the other party can call the maker of the statement and can cross-examine him. The situation is less clear, though, where the foreign witness refuses to attend court for cross-examination. Ordinarily the evidence of a witness not attending for cross examination at a hearing other than a trial cannot be used without the consent of the court but in the House of Lords decision of Polanski v Conde Nast Publications Ltd  it was held that the failure of a witness to attend for cross examination did not make the statement inadmissible.
The issue in this case, though, was whether the court has the power to order the foreign witness to attend. The witness in question is both the defendant and a member of the Saudi royal family and he produced a statement from the Saudi Arabian embassy to the effect that he was not allowed to give oral evidence in foreign court proceedings. The judge did not accept that it was contrary to Saudi law for the witness in this case to attend. He further held that he had jurisdiction under CPR r33.4 (which provides that, where a party (a) proposes to rely on hearsay evidence; and (b) does not propose to call the person who made the original statement to give oral evidence, the...