Delhi High Court allows use of video conference in commercial suit to record statement of witness in US

The Delhi High Court has allowed recording of statements of United States based witnesses through video-conference (VC) in an ongoing commercial suit before the High Court [Phillips 66 Company v Raaj Unocal Lubricants Limited]..Justice Sanjeev Narula allowed the request and rejected the contentions that recording of statements through VC may not be effective as there may be difficulties over document handling and witness demeanour assessment.In its judgment delivered on February 15, the Court said that it acknowledges the concerns around the issue but it must also weigh in the “broader context of judicial efficiency and the imperative to adapt to contemporary challenges without diminishing the fairness or integrity of the trial process”.“The apprehensions regarding the use of video conferencing for the examination and cross-examination of witnesses, would assume significance where the witnesses are vulnerable, or not tech savvy. However, in the context of the Intellectual Property Division (IPD) bench of this court, where we deliberate on matters of intellectual property rights, both the legal professionals and the parties involved are sophisticated users of technology. This bench deals with counsels who are not only accustomed to, but also proficient in the use of digital platforms for professional and personal communication. The assertion that the use of video conferencing technology might be inherently disadvantageous overlooks this crucial aspect of our proceedings,” the Court said.It further stressed that the goal is not to replace the traditional method but to ensure that cross-examination via video conference replicates the rigor and thoroughness of in-person proceedings as closely as possible.“The courts must foster an environment where the reliability of testimony, whether delivered in person or remotely, remains unimpeachable. To this end, if a party harbours reservations about the efficacy of video conferencing for cross-examination, they must be afforded the opportunity to articulate their concerns and request an in-person examination, provided their reasons are compelling and justifiable.”.The Court was dealing with a suit filed by Phillips 66 Company against Raaj Unocal Lubricants Limited.An application was moved by Phillips seeking appointment of a local commissioner to record the statement of two plaintiff witnesses through VC as they are professional with significant responsibilities in their law firm and based in the US.The application was opposed by the counsel for the other side underscoring the lack of prior consent of the defendant which is mandatory as per Chapter 3, Rule 6.2 of the High Court of Delhi Rules for Video Conferencing for Courts, 2021.It was also stated that the traditional preference for in-person cross-examination enables the Court to directly observe the demeanour of the witness, an aspect crucial for assessing credibility of the witness.The Court was further told that there is no urgent circumstance that would necessitate the deviation from standard courtroom procedures and that acceding to such a request without substantial justification would encroach upon the Defendant's right to a fair trial..After considering the arguments, Justice Narula ruled that even though Phillips failed to furnish strong arguments to justify witnesses’ inability to attend the cross-examination in person, that does not undermine the significant benefit and suitability of adopting modern technological solutions in our judicial processes.“The existing rules and frameworks for video conferencing are specifically designed to accommodate such scenarios, ensuring that justice is administered efficiently without compromising the fairness of the trial… Moreover, in an era marked by significant technological advancements, the Commercial Court is committed to facilitating expeditious trials that reflect the needs and realities of today’s cross border nature of legal matters,” the Court said. .It, therefore, allowed the request..In doing so, the Delhi High Court differed with the views of the Karnataka High Court in TG Veeraprasad and Ors v Prakash Gandhi where the Court had ruled that a party cannot insist on recording evidence through video conferencing as a matter of right.Justice Narula appointed retired District and Sessions Judge Vinay Gupta as the commissioner to preside over the proceeding at Court point for recording of evidence and determining granular details regarding recording of testimony.He requested the Indian Embassy in Houston, Texas to nominate an official as the remote point co-ordinator. The Deputy Registrar (Computers) was appointed as the co-ordinator at Court point to deal with technical aspects..Senior Advocate Rajshekhar Rao along with advocates Priya Adalakha, Rohan Krishna Seth, Aishwarya Debadarshini and Areeb Amanullah appeared for Phillips.Raaj Unocal was represented by Senior Advocate Jayant K Mehta and advocates Kapil Wadhwa and Tejasvini Puri. .[Read Judgment]