Salutary lessons for those conducting remote trials during the pandemic are contained in the recent decision in Gubarev v Orbis Business Intelligence [2020] EWHC 2167 (QB). The judgment (by the President of the Queen’s Bench Division and Mrs Justice Andrews) highlights the many potential pitfalls practitioners may encounter in preparing for and participating in remote trials. In this article, Ian Gatt QC considers the judgment in Gubarev, which will repay careful reading if the same mistakes are not to be repeated.

The matter was referred to the Divisional Court by the trial judge (Mr Justice Warby) under the Hamid jurisdiction. This is a procedure by which the court exercises its inherent jurisdiction to govern its own procedures, and considers whether a lawyer’s professional behaviour has fallen far short of the standards required of those conducting proceedings, and, if so, whether such behaviour ought to be reported the relevant professional regulator.

The substantive proceedings were the well-publicised defamation proceedings brought by Russian businessman Aleksej Gubarev against former British intelligence agent Christopher Steele relating to the ’Steele dossier’.

The trial judge became aware in the course of the trial that for three days, video and/or audio of the trial had been live-streamed to individuals outside the jurisdiction without the court’s permission. This amounted to breaches of:

1. section 41 of the Criminal Justice Act 1925 (the prohibition on taking or publishing photographs in court of any person involved in proceedings before the court), and
2. section 9 of the Contempt of Court Act 1981 (the prohibition on recording, or publishing a recording of, court proceedings), and
3. the terms of an order he had made in the proceedings.

This was a state of affairs that the Divisional Court described as “deeply worrying”.

Background

Directions had been given for a socially distanced trial, which limited the persons having physical access to the courtroom to the judge and his clerk, the parties’ identified legal representatives, the parties and their witnesses, the associate and court clerk, and the shorthand writers and anyone providing document management and/or electronic bundling services for the trial. A second socially distanced courtroom was to be reserved for members of the press and public who wished to observe the trial, and who could do so by a live video feed.

Preparations for the remote trial did not start well. The Divisional Court criticised the terms of an email from the claimants’ solicitors setting out the parties’ “requirements” for the courtrooms as “peremptory and inappropriate”. The judge described the wording of the email as “unfortunate”. The Divisional Court considered that the email had sought to tell the court “in a high-handed manner” how the trial was going to be conducted and that the claimants’ solicitors had subsequently failed to acknowledge this.

The judge reminded the parties that the management of the trial is a matter for the court, and of the need to seek appropriate orders as to, for example:

1. Permission to use an off-contract transcriber, and
2. The provision of a live transcript feed to any external location, identifying exactly what is proposed.

An application was made to the trial judge for, among other matters, a direction for a “live audio-visual recording that could be transmitted to participants who were unable to attend the trial in person due to the UK’s quarantine restrictions or unable to be in the primary courtroom due to social distancing requirements”. The draft order confined the live feed proposed to the secondary courtroom. It was reiterated that: “The use of an outside transcriber or organisation to facilitate video and/or audio hearings is an exceptional course, for which permission must be obtained from the court.”

The trial judge had made an order which provided, among other matters, that there was to be no transmission to any location other than the second courtroom of any live audio or video recording, nor any live feed of any transcript of the trial. In his reasons for that direction, the judge pointed out that other than the exceptions made for the live-streaming from the Supreme Court, the Court of Appeal and certain sentencing remarks, the live-streaming of video and audio of court proceedings is prohibited. Moreover, live transcription and live text-based reporting, while not prohibited by statute, is regulated in the exercise of the court’s inherent jurisdiction.

The judge did not refer to the provisions of the Coronavirus Act 2020, which enable the court to permit live-streaming in certain circumstances. Section 55 and Schedule 25 of that act make amendments to the Courts Act 2003 to make provision for the broadcasting of certain proceedings where the court directs that the proceedings are to be conducted wholly as video or audio proceedings. Those provisions did not apply in the instant case because the proceedings were hybrid, ie partly by video and partly by physical proceedings in court.

The Divisional Court commented that the judge’s order and his reasons could not have been clearer. The court said they should have been circulated by the parties’ solicitors to their clients and the transcribers (or at least have explained their effect) so that no-one was in any doubt as to what they were permitted (or were not permitted) to do.

Following the judge’s order, the transcribers were asked to facilitate the feed to the second courtroom, which they did using the Zoom platform. The claimants’ solicitors asked the transcribers to provide the same link for the feed be sent to their attendee list (which included members of the claimants’ solicitor team and three of their clients). This was made available in the belief that those to whom it would be sent would be using it in the primary courtroom where they would be sitting in the public gallery and unable to see a video screen; it would enable them to see remote participants as and when necessary.

In the course of the trial, the judge, entirely by accident, discovered that one of the witnesses was visible on one of the video screens. As a result of his subsequent enquiries, it became clear that a partner at the claimants’ solicitors had wrongly informed her clients that they could disseminate the Zoom link and they had done so to seven individuals (located in Cyprus, Russia and the United States). The claimants’ solicitors reported themselves to the Solicitors Regulation Authority, and the trial judge referred the matter to the Divisional Court under the Hamid jurisdiction.

The Divisional Court

The Divisional Court stated a number of key points:

• However a court hearing is conducted, it is a matter of fundamental importance that the formalities of court hearings must be observed and the orders made by the court must be obeyed.
• A court hearing is a formal public process which deserves respect. It is not a live-streamed event unless the court decides that it is both lawful and appropriate to make it such. It is not an event, even if it is taking place in court, that can be lawfully made open to any remote party that the participant parties, let alone the service provider, chooses to let in.
• During the pandemic, there have been temporary changes to the way in which parties and their representatives and others, including the media and the general public, have been permitted to obtain access to proceedings. Nonetheless, whether a court hearing is a remote hearing or a hybrid hearing (ie one that is partially face-to-face and partially remote) or a conventional face-to-face hearing, it must be conducted in a way that is as close as possible to the pre-pandemic norm.
• This is important because, in normal circumstances, the judge can see and hear everything that is going on in court. They can see who is present and whether a witness who is giving live evidence has been present in court observing and listening to the evidence of other witnesses. They can see whether someone is attempting to influence, coach or intimidate a witness while they are giving evidence. That a judge can see and hear everything that happens in court enables the judge to maintain order, discipline and control over what is done in court, and thus maintain the dignity and integrity of the proceedings as a whole. This control extends to the recording of images and sounds of what goes on in court and what is then used outside court.
• Once live-streaming or any other form of live transmission takes place, the court’s ability to maintain control is substantially diminished. The opportunity for misuse (via social media, for example) is enhanced, with the risk that public trust and confidence in the judiciary and the justice system will be undermined.
• In these circumstances, it is critical that those who have the conduct of proceedings should understand the legal framework within which those proceedings are conducted. The court must be able to trust legal representatives to take the necessary steps to ensure that the orders made by the courts are obeyed.

The Divisional Court concluded by stating that:

“It is the solicitors’ responsibility to make sure that they and their clients and any third party transcribers they are responsible for instructing are fully familiar with the contents of any order relating to the relaying or transmission of proceedings or the provision of transcripts and the like, and to make sure that they have copies and refer to them whenever any issue of this nature arises in the future.

“It is important nonetheless to emphasise that all participants in legal proceedings, including legal representatives, parties, and those involved at an ancillary level, including court transcribers, understand that any breaches of express prohibitions in court orders, and in particular, breaches of the legal prohibitions on broadcasting and of related protective measures such as security requirements, will be treated with the utmost seriousness.”

Given the clear and forceful observations of the Divisional Court, it is likely that any future failures by lawyers to follow the rules will be viewed with little sympathy by the courts and their professional regulators.

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