Opinion

On 11 November last year the Court of Appeal struck what may be a knockout blow against film director Roman Polanski’s libel action against Vanity Fair. In doing so, it removed a threat to defendants in libel cases from litigants afraid to face the legal music in this country.

Surprisingly, Polanski sued Vanity Fair in the UK for an anecdote in an article about Elaine’s Restaurant in New York concerning his alleged (but denied) behaviour towards a woman in Elaine’s in 1969 very shortly after his wife, Sharon Tate, had been murdered.
His libel action served to remind us that he is on the run from the California courts after pleading guilty on a plea bargain to unlawful sexual intercourse with a 13-year-old girl when he was 42. Fearing another spell in a California jail, Polanski has not set foot in the US since 1978 and lives in France as a French citizen.

In high-risk litigation, which could see him getting little change from £500,000, he went forum shopping in the UK, with its libel advantages. Polanski risks extradition to the US if he enters the UK, so shortly before the trial was due to start on 3 November 2003 he sought to give evidence by videolink from Paris. Mr Justice Eady reluctantly allowed his application, but the Court of Appeal disagreed, accepting Vanity Fair’s argument that this would be an affront to the administration of justice. Furthermore, Polanski’s fallback of giving evidence by a written statement would be inadmissible unless he was willing to come to the UK to be cross-examined. He was seeking an indulgence from the court, although he was not precluded from suing in the UK by his conviction. His apparent snook-cocking at the California authorities and his forum-shopping raised issues of public policy which militated against his application to give evidence from Paris. Would not people have been outraged if Kenneth Noye could, when wanted for the road rage murder for which he was subsequently convicted, have sued for libel from his sanctuary in Spain?

The Court of Appeal laid down pointers as to when videolink evidence would be allowed. It would look at the nature of the offence and of the civil claim and the link between them. Here, both had a sexual content.
The court would consider the role of the witness. Video evidence would more likely be permitted for a non-party witness or a defendant who had not chosen the jurisdiction.

The court would also look at the importance of the claim to the person seeking the videolink and at the possibility of that person suing elsewhere. In a telling blow to forum shoppers, the Court of Appeal noted that Polanski’s claim could have been brought in the US (where most of Vanity Fair’s circulation is) or France (where Polanski lives and has a reputation). The court would also look at the likely disadvantages of videolink evidence against live evidence.

The court distinguished Rowland v Bock, where Mr Justice Newman observed that “full access to justice in a civil court should not, save in exceptional circumstances, be at the price of a litigant losing his liberty and facing criminal proceedings”. Polanski wanted, as Vanity Fair put it, “à la carte justice”.
Although no libel action has been fought in England in the claimant’s absence, John Cleese by consent gave evidence as to damages by video from the US in an offer of amends case, David Bookbinder did not give evidence in a case he lost but was present, and an elderly witness unfit to travel gave videolink evidence in McPhilemy v Times Newspapers.

Public policy should, the Court of Appeal observed,
be to discourage litigants escaping the processes of law. It was inconceivable that, if Polanski’s sexual offending had been in the UK, he would have been allowed to sue from abroad. Polanski could sue in the UK – he simply could not have the indulgence of testifying from Paris. Any mitigating circumstances regarding his flight from justice were a matter between him and the California courts and were insufficient reason to allow him to avoid coming, like any other claimant, to court.

Polanski is seeking permission to appeal to the House of Lords. Meanwhile, defendants can expect that forum shoppers will have to come here if they want their day in court.