CL-2022-000456 - [2025] EWHC 1614 (Comm)

Mr Fokin is resident in Cyprus. He made a witness statement, but it later became apparent that he was reluctant to give oral evidence. ING sought and obtained a letter of request, which was sent to the authorities in Cyprus.

This ultimately led to Mr Fokin giving evidence remotely, from Cyprus, in circumstances where it had been agreed that his evidence would be given in private, with no members of the public present; albeit he had no objection to his evidence then being relied on and referred to in the proceedings, or in my judgment. This agreement was negotiated on Mr Fokin’s behalf by his Cypriot lawyers. It was agreed, not only by ING’s Cypriot lawyers, but also (as I understood it) by all the other parties.

It having been agreed by everyone that Mr Fokin should give his evidence in private, I directed, just before he was called, that the hearing was now taking place in private. I did so because the parties asked me to. I understood this to be the joint position of all the parties, including Tecnimont. The hearing then proceeded in private for the duration of Mr Fokin’s evidence.

An inevitable consequence of the fact that Mr Fokin’s evidence was given in private was that the transcript of his evidence could not be made public: CPR r 39.9(3)-(4), providing for this result “unless the court so orders.”

Tecnimont argued that I should make such an order, because of the unusual circumstances in which Mr Fokin’s evidence came to be given in private. In my clear view, however, the fact that Mr Fokin ultimately gave evidence after terms stipulating for a private hearing had been negotiated by his lawyers, and were ultimately agreed by all the parties, points the other way.

It would set a potentially harmful precedent if, absent a compelling reason, I were now to allow Tecnimont to overturn the parties’ universal agreement. It would mean that, in the future, no witness would feel confident that he can rely on the English court to hold parties to such an agreement; so no promise of privacy can be given any weight. This could deter witnesses from giving evidence at all.

If any party had objected before the fact to Mr Fokin’s evidence being given in private, matters might no doubt have proceeded differently. In particular, if Tecnimont had indicated at that point that it would wish the transcript of his evidence to be made public, notwithstanding CPR 39.3(3)-(4), this point could have been properly explored then. It would have become apparent whether Mr Fokin would have been reluctant to give evidence in those circumstances, whether some accommodation could be found that would enable him to participate voluntarily or whether other measures might be necessary.

As it is, however, Tecnimont made its bed and must lie on it.

I can imagine circumstances where the interests of justice might make it appropriate for the court to make an order that the transcript of a witness’s evidence be made public, despite prior agreement that the evidence be heard in private. However, Tecnimont has not really advanced any reason why to do so is appropriate in this case, beyond the fact that it may wish to rely on Mr Fokin’s evidence in related arbitration proceedings. I know next to nothing about those arbitration proceedings, not least whether any of Mr Fokin’s evidence is relevant to any of the issues, or whether he will or may be a witness (or, if so, on what basis).

Accordingly, the application in respect of the transcript of Mr Fokin’s evidence is refused.