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Polanski (Appellant) v. Condé Nast Publications Limited (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Condé Nast Publications Limited (Respondents)
THURSDAY 10 FEBRUARY 2005
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hope of Craighead
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Polanski (Appellant) v. Condé Nast Publications Limited (Respondents)
 UKHL 10
THE LORD NICHOLLS OF BIRKENHEAD
1. 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.
2. 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.
3. The July 2002 edition of 'Vanity Fair' contained a feature article about 'Elaine's'. The article included the following passage:
4. 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.
5. 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.
6. 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.
7. 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.
8. 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'.
9. 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:  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.
10. 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
11. 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.
12. 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.
13. 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.
14. 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:  1 WLR 387, 402. Whether Mr Polanski's reason is sufficient is the all-important question to which I shall return.
15. 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 crucial dispute of fact, concerning what took place at the restaurant, will not be placed before the jury. Either way, in its conduct of this litigation Condé Nast will receive an unjustified windfall at the expense of Mr Polanski. Condé Nast will find itself in the fortunate position of not being called to account for having published what may be a serious libel.
The public interest in the administration of justice
16. Unfair consequences of this kind, prejudicial to one party and correspondingly beneficial to the other, are not unusual when questions of 'public policy' arise. Public policy is based on wider considerations than the interests of the parties themselves. But this does not mean the consequences for the parties are irrelevant when considering wider questions of public policy. On the contrary they may be of relevance and importance. They are so in the present case. They are one of the factors the court will take into account when deciding whether a VCF order in respect of Mr Polanski's evidence would bring the administration of justice into disrepute. Mr Pannick QC, appearing for Condé Nast, rightly accepted this.
17. This approach accords with the contemporary trend in this area of the law. The trend on matters of this kind is to look broadly at the requirements of justice. Whether the use of the court's procedures in a particular way would bring the administration of justice into disrepute or, as it is sometimes put, would be an affront to the public conscience, calls for an overall balanced view. This does not mean the courts now apply lower standards in the administration of justice or that the public conscience is now less easily affronted. Rather, it means the courts increasingly recognise the need for proportionality. The sanction must be appropriate having regard to all the circumstances. Indeed, an over-rigid interpretation of the requirements of public policy in this field may be counter-productive. A legal principle based on public policy which ignores the consequences for the parties can itself bring the administration of the law into disrepute. It may also involve a breach of the parties' rights under article 6 of the European Convention on Human Rights.
18. A similar approach is now adopted in cases where a party seeking to be heard by the court is in contempt of court. That fact is not of itself a bar to the contemnor being heard: see Denning LJ in Hadkinson v Hadkinson  P 285, 298, approved by Lord Bridge of Harwich in X Ltd v Morgan-Grampian (Publishers) Ltd  1 AC 1, 46. In Arab Monetary Fund v Hashim (21 March 1997, unreported), quoted by Potter LJ in the judgment of the Court of Appeal in Motorola Credit Corporation v Uzan (No 2)  1 WLR 113, 128, Lord Bingham of Cornhill CJ said the preferable approach is to ask
19. The same type of problem arises from time to time where a claimant, in order to pursue his claim, is forced to rely on his own illegal conduct. Then, on grounds of public policy, the court may refuse to aid him. This principle was affirmed, in a somewhat rigid form, in Tinsley v Milligan  1 AC 340. Whether this is the last word on this controversial subject remains to be seen. That is not an issue arising on this appeal.
Fugitives from justice
20. Against this background I turn to consider the point of legal principle raised by this appeal. A fugitive from justice is unwilling to come to this country to give evidence in person in civil proceedings properly brought by or against him. Can that be a sufficient reason for making a VCF order? Or would such an order, made for that reason, bring the administration of the law into disrepute?
21. These questions did not arise in past years. In the past oral evidence required physical presence. But recent advances in telecommunication technology have made video conferencing a feasible alternative way of presenting oral evidence in court. The issue before the House is whether the development of this new facility should ensure for the benefit of fugitives from justice as much as it does for other parties to litigation.
22. There are three possible answers on this issue. They may be broadly summarised as follows: (1) as a general rule a fugitive's unwillingness to return to the jurisdiction of this country is a valid reason, and can be a sufficient reason, for making a VCF order; (2) as a general rule a fugitive's unwillingness to return is not a valid reason for making a VCF order; and (3) there is no general rule: everything depends on the circumstances.
23. Possibility (3) is not attractive. That would leave at large the answer to the question of legal policy raised by this appeal. That would not be satisfactory. The fugitive's reason for seeking a VCF order must, as a matter of legal policy, either be acceptable in principle or not. The House must give guidance on this issue. So the choice lies between answers (1) and (2).
24. A number of features are to be noted. First, in the present case Mr Polanski's criminal conduct did not take place in this country. But the public interest in furthering the proper processes of investigation, trial and punishment of criminal offences committed in the United Kingdom applies equally where an extradition crime has been committed or allegedly committed in a country with which the United Kingdom has a relevant extradition treaty. Countries which are parties to an extradition treaty or the like have a mutual interest in seeing that persons who commit crimes in one country do not escape trial or punishment by fleeing abroad: see Lord Templeman in Re Evans  1 WLR 1006, 1008.
25. Second, a fugitive from justice is not as such precluded from enforcing his rights through the courts of this country. This is so whether the fugitive is claimant or defendant. Mr Polanski's status as a fugitive offender does not deprive him of any rights he would otherwise possess in respect of the subject matter of this action. His flight from California in 1978, and the steps he has taken ever since to remain beyond the reach of the Californian court, do not preclude him from bringing proceedings in England in respect of damage to his reputation flowing from publication of defamatory material in this country.
26. At first sight this may seem unattractive. It may seem unattractive that a person can, at one and the same time, evade justice in respect of his criminal conduct and yet seek the assistance of the courts in protection of his own civil rights. But the contrary approach, adopted in the name of the public interest, would lead to wholly unacceptable results in practice. It would mean that for so long as a fugitive remained 'on the run' from the criminal law, his property and other rights could be breached with impunity. That could not be right. Such harshness has no place in our law. Mr Polanski is not a present-day outlaw. Our law knows no principle of fugitive disentitlement.
27. Thirdly, a direction that a fugitive such as Mr Polanski may give his evidence by use of video conferencing is a departure from the normal way a claimant gives evidence in this type of case. But the extent of this departure from the normal should not be exaggerated. It is expressly sanctioned by the Civil Procedure Rules. The power conferred by the rules is intended to be exercised whenever justice so requires. Seeking a VCF order is not seeking an 'indulgence'.
28. Fourthly, in the situation under consideration a VCF order will not assist the fugitive's evasion of justice. Whether a VCF order is made or not, the fugitive will not come to this country. He will not put himself at risk of arrest. In the present case, come what may, Mr Polanski's longstanding evasion of justice will continue. It will be unaffected by the court's decision on whether to make or refuse a VCF order. The effect of making a VCF order will be different. In the present case the effect will be to relieve Mr Polanski from one of the disadvantages of his fugitive status, namely, that he cannot travel freely to a country which has a relevant extradition treaty with the USA. To that extent a VCF order will enable Mr Polanski to sidestep one of the adverse consequences of his own criminal conduct and flight from justice. A VCF order will enable him to present his evidence orally to an English court in proceedings properly brought by him here, without being physically present in the court room.
29. Thus the practical consequences of the alternative answers on this issue are that if a court makes a VCF order, the fugitive will be relieved of a disadvantage otherwise attendant upon his fugitive status; but if the court refuses to make a VCF order, the fugitive's oral evidence will not be available at the trial. By adopting the latter course the court will in effect be saying be saying to the fugitive: 'unless you surrender your fugitive status you cannot pursue (or, as the case may be, defend) your civil proceedings'.
30. I understand the intuitive dislike of relieving a fugitive of a disadvantage which until recently was inherent in his self-created status. Until recently the fugitive had to make up his mind whether (a) to surrender his fugitive status and give his oral evidence in court or (b) to maintain his flight from justice and suffer whatever disadvantages this might have in civil proceedings to which he was a party as claimant or defendant.
31. I understand that. But overall the matter which weighs most with me is this. Despite his fugitive status, a fugitive from justice is entitled to invoke the assistance of the court and its procedures in protection of his civil rights. He can bring or defend proceedings even though he is, and remains, a fugitive. If the administration of justice is not brought into disrepute by a fugitive's ability to have recourse to the court to protect his civil rights even though he is and remains a fugitive, it is difficult to see why the administration of justice should be regarded as brought into disrepute by permitting the fugitive to have recourse to one of the court's current procedures which will enable him in a particular case to pursue his proceedings while remaining a fugitive. To regard the one as acceptable and the other as not smacks of inconsistency. If a fugitive is entitled to bring his proceedings in this country there can be little rhyme or reason in withholding from him a procedural facility flowing from a modern technological development which is now readily available to all litigants. For obvious reasons, it is not a facility claimants normally seek to use, but it is available to them. To withhold this facility from a fugitive would be to penalise him because of his status.
32. That would lack coherence. It would be to give with one hand and take away with the other: a fugitive may bring proceedings here, but his position as a fugitive will tell against him when the court is exercising its discretionary powers. It would also be arbitrary in its practical effect today. A fugitive may bring proceedings here but not if it should chance that his own oral evidence is needed. Then, despite the current availability of VCF, he cannot use that facility and a civil wrong suffered by him will pass unremedied.
33. For this reason I consider the judge was entitled and, indeed, right to exercise his discretion as he did. Rowland v Bock  4 All ER 370 was correctly decided. There Newman J made a VCF order in respect of a claimant who risked arrest and extradition to the USA on charges of fraud. No doubt special cases may arise. But the general rule should be that in respect of proceedings properly brought in this country, a claimant's unwillingness to come to this country because he is a fugitive from justice is a valid reason, and can be a sufficient reason, for making a VCF order. I respectfully consider the Court of Appeal fell into error by having insufficient regard to Mr Polanski's right to bring these proceedings in this country even though he is and will continue to be a fugitive from justice.
34. I would allow this appeal and restore the judge's order. Mr Polanski was convicted of a serious crime. His reluctance to return to this country is grounded in a fear that he may be extradited and receive a custodial sentence in California. That does not take the case out of the general rule. However, at the trial the jury will be told these facts and will take them into account on all issues to which they are relevant.
Use of a claimant's statements as hearsay evidence
35. I add a brief footnote on a different procedural point raised before the Court of Appeal. Having regard to the conclusion I have reached on the main issue this point does not strictly arise on this appeal. But it is a point of general importance to practitioners. In the present case the Court of Appeal set aside the judge's VCF order and added this:
36. I agree with the Court of Appeal that the court's case management powers under CPR 32.1 are wide enough to enable the court to make the orders indicated by the Court of Appeal in this passage. But I do question whether in the present case, had a VCF order been refused, the court would have been 'bound' to make an order excluding Mr Polanski's statements from evidence if he did not present himself in court for cross-examination. Such an exclusionary order should not be made automatically in respect of the non-attendance of a party or other witness for cross-examination. Such an order should be made only if, exceptionally, justice so requires. The overriding objective of the Civil Procedure Rules is to enable the court to deal with cases justly. The principle underlying the Civil Evidence Act 1995 is that in general the preferable course is to admit hearsay evidence, and let the court attach to the evidence whatever weight may be appropriate, rather than exclude it altogether. This applies to jury trials as well as trials by judge alone, as noted by Brooke LJ in the judgment of the court in O'Brien v Chief Constable of the South Wales Police  EWCA Civ 1085, paras 68-69.
LORD SLYNN OF HADLEY
37. The appellant, who lives in France, claims that he was libelled in an article published in July 2002 in the United States, in this country and in France in the magazine "Vanity Fair" by the respondents. The article made allegations against him of his behaviour in New York in August 1969. The details are set out in the opinion of my noble and learned friend Lord Nicholls of Birkenhead to which I refer without repeating.
38. The appellant has issued proceedings in England but not in the United States or in France. He says that though he can validly issue proceedings here in respect of the libel (which is correct) he cannot come to give oral evidence here because he would be liable to be, and would be likely to be, extradited to the United States to be sentenced in connection with an offence of unlawful sexual intercourse with a thirteen year old girl in 1977 to which offence he pleaded guilty. He fled the United States between conviction and sentence and has not been back there or to the United Kingdom since. As a French citizen he cannot be extradited from France to the USA to be sentenced.