On 6th February 2025, the Secretary of State made regulations in exercise
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Royal contemnors and video evidence
Introduction
In the ongoing saga between HRH Prince Hussam Bin Saud Bin Abdulaziz Saud (“Prince Hussam”) and Mobile Telecommunications Company KSCP (“MTC”), the High Court was recently faced with the question of whether Prince Hussam, his mother Princess Noorah, and his wife Princess Sarah, should be able to give evidence remotely during the trial of MTC’s bankruptcy petition against Prince Hussam. In deciding that Prince Hussam and Princess Noorah, but not Princess Sarah, could give evidence remotely, Thompsell J explored a number of authorities concerning applications to appear in court by video link (“VCF applications”). The aim of this article is to first set out the background to Prince Hussam’s VCF application, and to then explore the relevant principles raised by Thompsell J which are relevant to practitioners dealing with issues in this field.
The background
Although the dispute between Prince Hussam and MTC is one of great complexity, the underlying facts are relatively straightforward. The litigation is concerned with an arbitration award obtained by MTC whereby Prince Hussam is said to owe roughly US$817 million plus interest. To date, Prince Hussam has paid nothing to MTC, who are therefore seeking to obtain a bankruptcy order against Prince Hussam in relation to this alleged debt.
Of particular note in relation to Prince Hussam’s VCF application is the fact that MTC obtained an anti-suit injunction against him (see Baker J’s judgment in [2018] EWHC 1469 (Comm)). Then, following Prince Hussam’s breach of this injunction, Jacobs J found him to be in contempt and decided that he should be committed to HMP Pentonville for a period of one year (see [2018] EWHC 3749 (Comm)). As noted by Thompsell J at [8] and [20] of his judgment, the very real threat that Prince Hussam would be sent to prison if he was to attend trial in England is the reason why he made a VCF application.
Further, Princess Noorah sought to give evidence remotely on the grounds that she was unwell, so travelling to England would not only be an inconvenience, but a significant risk to her health. Finally, Princess Sarah wished to give evidence by video link due to a number of personal and official commitments.
The law relating to VCF applications
The lead authority on whether a witness ought to be allowed to give evidence remotely is the decision in Polanski v Conde Nast Publications Ltd [2005] UKHL 10. In that case, the Claimant was a well-known Hollywood director who had brought an action in libel against the Defendant publisher. Of complication for the Claimant was the fact that he was a fugitive from justice in the United States, and could therefore not attend trial in England due to the risk that he would be extradited to the USA upon his arrival in this country. He therefore made a VCF application, the answer to which ultimately fell to the House of Lords to determine.
Delivering the lead judgment of the court, Lord Nicholls found that the claimant should be able to give evidence remotely. The most significant strand of his lordship’s reasoning is to be found at [26] of his judgment, namely that ‘our law knows no principle of fugitive disentitlement’. In other words, the fact that the Claimant was evading the criminal justice system in the USA did not provide any reason at all, let alone a sufficient one, to prevent him from defending his right not to be defamed by the Defendant.
The logic behind the House of Lord’s decision in Polanski was succinctly captured by the Court of Appeal in Khrapunov v JSC BTA Bank [2018] EWCA Civ 819, where Sales LJ stated at [91] that ‘the factor which weighed most with Lord Nicholls…was that the administration of justice is not brought into disrepute by allowing a fugitive to bring a claim, so it was difficult to see why it would be brought into disrepute by permitting him to have recourse to a familiar procedure which would enable him to do that in an effective manner’. In sum, it is therefore clear as a matter of English law that a party should not be prevented from defending their private law rights simply because they face criminal sanction in this or any other jurisdiction.
The decision of Thompsell J
Having considered the relevant authorities, Thompsell J held that Prince Hussam and Princess Noorah, but not Princess Sarah, should be able to give their evidence remotely.
In relation to Prince Hussam, the main reason for allowing his VCF application was expressed as [27], and was that ‘if the court were to insist on Prince Hussam attending the trial in London, he would not consider that he had any option but to fail to attend, and if this meant that his oral evidence (and perhaps his witness statements, if not allowed as hearsay) were to be excluded he would not have a fair trial’. This statement clearly echoes the reasoning in Polanski by confirming that Prince Hussam, a contemnor, should receive the same fair trial rights under Article 6 of the ECHR as any other litigant in the English courts.
By way of opposition, counsel for MTC tried to suggest that Prince Hussam’s position was different to that of the Claimant in Polanski because, unlike a fugitive facing extradition to the USA, he could simply purge his contempt and attend trial in person. In accordance with authority, Thompsell J gave this argument short shrift at [25], where he cited the decision of Neuberger J (as he then was) in Shalson v Russo [2002] EWHC 399. In that case, the Defendant had been committed for failure to comply with, inter alia, a search and disclosure order. Upon the Defendant’s application to purge his contempt, Neuberger J held at [26] that he could not be released from prison because committal for contempt of court consisted of both a coercive and penal element, and that the penal aspect of the Defendant’s committal still had time to run. Such an analysis was later taken up and approved by the Court of Appeal in FCA v McKendrick [2019] EWCA Civ 524.
Applying these principles to MTC’s “purging” argument, Thompsell J therefore found at [26] that ‘even if there is some prospect of purging the contempt, it is unlikely that this could be done in a manner that would completely take away from [Prince Hussam] the risk of incarceration’. Consequently, Prince Hussam’s VCF application was granted in accordance with the principles set out in Polanski.
As to Princess Noorah and Princess Sarah, their applications were somewhat more straightforward in so far as there was no question as to whether they would be detained upon their arrival in England. Rather, the issues at stake were simply factual. On one hand, Princess Noorah was allowed to give evidence remotely because travelling to England posed a risk to her ailing health, whereas on the other hand Princess Sarah’s VCF application was denied because there was little evidence to suggest that she would be unable to attend to give evidence.
Takeaways from the decision
By way of conclusion, practitioners dealing with VCF applications, and contempt more generally, should bear the following points in mind.
Firstly, whilst giving evidence by video link is certainly not the norm, it appears as if the courts have, and in the authors view rightly so, taken a more liberal stance towards granting VCF applications. In the highly technological 21st century, it seems somewhat archaic to insist upon commercial clients having to attend court to give evidence when, as observed in 2005 by Lord Carswell at [93] in Polanski, ‘the technology is now well established and its use would not cause much prejudice to the defendants’. Thompsell J endorsed that view at [11].
Secondly, as illustrated by the decisions in relation to Princess Noorah and Princess Sarah, the court’s decision as to whether an individual should be able to give evidence remotely is highly fact sensitive, and so it is important for practitioners to consider what are the strongest and most important reasons why their client should be granted such a facility by the court.
Finally, and perhaps most importantly, Thompsell J’s decision serves as a stark reminder that committal for contempt of court consists of both a coercive and penal element. Practitioners should therefore take this into account when deciding whether their client should make an application to purge their contempt as, in some scenarios, this may be of little utility when the primary reason behind their client’s committal was as a punitive, rather than coercive, sanction.
Marc Glover has been instructed as Prince Hussam’s lead counsel in the dispute since 2023, having taken over from John Wardell KC (Wilberforce). For this application, Marc acted alongside Geraint Jones KC (3 Paper Buildings). They were assisted by Sami Allan, Pupil Barrister at Tanfield Chambers. Stephen Moverly-Smith KC (XXIV) and Catherine Hartston acted for the Petitioner.
This case drew media attention.
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Andrew Butler KC has been successful on an appeal against the judgment
