REMOTE HEARINGS THE SOLICITOR’S DUTIES: (1) READ THE ORDERS MADE; (2) DO NOT BE IN CONTEMPT OF COURT
In the judgment today in Gubarev & Anor v Orbis Business Intelligence Ltd & Anor  EWHC 2167 (QB) the Divisional Court sent out a clear message that lawyers must follow orders of the court. Live trials cannot be transmitted to third parties without the express permission of the court.
“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.”
“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.”
In the middle of a libel trial the trial judge noted that witnesses who were to appear remotely were able to see proceedings. There had been a specific order preventing the streaming of the hearing, except with specific permission of the court. The judge referred the claimant’s solicitors to the Divisional Court given the professional conduct of the claimant’s solicitors “which had fallen far short of the standards required of those conducting legal proceedings before the courts of England and Wales.”
HOW NOT TO WRITE TO THE COURT: IN “PEREMPTORY AND INAPPROPRIATE TERMS”
Before looking at the substantive decision it is worth noting that the judgment contains an example of how not to write to the court. The Divisional Court observed that the claimant’s solicitors had written in “peremptory and inappropriate terms”.
“[W]e should be grateful if you would consider the following requests based on the parties’ requirements for the courtrooms:
1. We require the courtroom to be in the Rolls building, and to be of sufficient capacity to accommodate the judge, both legal and counsel teams as well as the key witnesses (we estimate there to be at least 15 individuals but will confirm as soon as possible).
2. We require a 2nd courtroom to be reserved for the press and public.
3. The trial will be conducted using the Opus 2 platform to accommodate for some participants attending in person and others attending remotely by video. The Opus 2 technical engineers will require all-day access to the primary courtroom on Thursday 16 and Friday 17 July to set up the hardware and conduct a test run.
4. Please note, it is Opus 2’s strong preference that the courtrooms are in the Rolls building so that they can access the relevant connectivity to ensure the Audio-Visual arrangements are properly working.”
THE JUDGE’S RESPONSE
The trial judge responded.
“It is inappropriate to write (for instance) that we require the courtroom to be in the Rolls building…” It is also inappropriate to assert in correspondence that “the trial will be conducted using the Opus 2 platform…” when no direction has been given or even sought to that effect. The Memorandum that accompanies the PTR Order shows that the parties have agreed that this is appropriate. The Judge is not opposed to this. But no order has been made.
What the parties do “require” is the Court’s permission for (i) the use of an off-contract transcriber, and (ii) the provision of a live transcript feed to any external location. The parties will need to make a formal application for the permissions identified above. The Court will also need to know exactly what is proposed by way of any transmission from the main courtroom to any other location: is the proposal to provide text only, or audio and/or video, and in any event to which external locations is it proposed to transmit?
In addition, although the Court may allow evidence to be adduced from witnesses through video links (CPR 32.3), there is no absolute right to adduce evidence in this way. Again, I am amenable, but an application needs to be made. PD 32 para 29.1 and Annex 3 provide guidance on the use of video conferencing, to which reference should be made.
If applications for these further directions are agreed, I will deal with them on paper, without a hearing. Otherwise, there may need to be a further PTR which could be held on Tuesday or Wednesday of next week.”
THE COURT ORDER
The judge thereafter made an order.
“7. The second courtroom identified in paragraph 1(2) of the PTR Order shall be deemed to be an extension of the principal courtroom.
8. (For the avoidance of doubt) unless the Court so directs, there shall be no transmission of any live audio or video recording, nor any live feed of any transcript of the trial or any part of it, to any location other than the second courtroom identified in paragraph 1(2) of the PTR order.
9. Any person wishing to seek permission to transmit to any other location any audio and/or video recording, and any application for the transmission of any live transcript or other live text based report or of the trial or any part of it must make a written application supported by written evidence or an explanation of the reasons for seeking permission and, in the case of an application for transmission of a video or audio recording identifying the specific location in England and Wales to which it is sought to transmit.
THE TERMS OF THE ORDER WERE CLEAR
The Divisional Court held that the terms of the order were clear.
The judge’s Order (and his Reasons) could not have been clearer. The solicitors ought to have supplied copies of it to their clients, or at least to have explained its effect so as to avoid any possibility of a misunderstanding arising in the future. We would also have expected the solicitors to provide a copy of the Order to the transcribers, so that the transcribers could be in no doubt either as to what it was they were, or were not, permitted to do. Neither of these things happened.
THE DEFENDANT’S APPLICATION
If there was any doubt about the matter the defendant did make the correct application. The court gave permission for one individual, self-isolating because of coronavirus, to watch the link.
The defendants’ solicitors, Reynolds Porter Chamberlain (RPC) did take notice of the 14 July Order. On 17 July 2020, pursuant to paragraph 9 of the Order, RPC sought and obtained the judge’s permission for the transmission of the live transcript of the trial to a specified individual. This person was a representative of the defendants’ insurers, who had contracted the coronavirus and was self-isolating at an address in London. The application was made by email and was copied to the solicitors within MWE who were responsible for the claimants’ case, that is Ms Robertson, Ms McIntyre and the associate solicitor. Had there been any doubt about the appropriate course to take in the event that any person who could not be present in either of the courtrooms wished to have a live transcript or video or audio link of the trial, that should have dispelled it.
THE CLAIMANT’S BREACHES ARE DISCOVERED BY ACCIDENT
It was on the third day of the trial that the judge discovered that a range of people had been permitted by the claimant’s solicitors to watch the trial remotely.
Later that day, during the cross-examination of another witness, the judge noticed that one of the remote witnesses, Sir Andrew Wood, was on one of the video screens and that he could obviously hear what was going on. The judge said that he was surprised to see Sir Andrew, he did not know he was watching, he had not authorised it, nobody had asked him to authorise it, and he was quite discomfited by what was going on. He then said:
“[I]t seems to me that there has been a lot of failures of understanding at various places. I don’t know how they’ve come about, I’m not blaming anyone for the moment, I’m just expressing quite profound dissatisfaction with the disruption and the disorganised way in which these proceedings have been partly transmitted to places that they should have been transmitted and apparently transmitted to places which were not yet authorised.”
Warby J rose for a short time to enable enquiries to be made as to how this state of affairs had come about. When the Court reconvened, the judge said he should like to know who it was proposed should be receiving a live feed of the proceedings. He quoted the express prohibition in his Order of 14 July. He observed that it could not have been clearer and that at the moment he failed to understand how that was not implemented.
THE OBSERVATIONS OF THE DIVISIONAL COURT
The Divisional Court were clear that the claimant’s solicitors had breached the duties owed to the court.
In this case, after discovering that his orders had not been obeyed and subsequent interventions into the proceedings by the technician employed by Opus 2 which do not make for happy reading (seemingly treating the proceedings as akin to an ordinary conference call) the judge was constrained to remind those present in court on day 3 of the trial, that a court hearing is a formal public process which deserves respect, in which the Court is endeavouring with the assistance of the parties to arrive at important decisions on contested matters. 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 this 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, that is 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.
In normal circumstances a judge can see and hear everything that is going on in court. The judge 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. The judge can see whether someone is attempting to influence, coach or intimidate a witness whilst they are giving evidence. The judge can immediately see, as Warby J did in the course of this hearing, that a person sitting in court who is not a journalist appears to be tweeting on their mobile phone without first obtaining permission. 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 to maintain the dignity and the 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, however, the Court’s ability to maintain control is substantially diminished, in particular where information is disseminated outside the jurisdiction, as happened in this case. The opportunity for misuse (via social media for example) is correspondingly enhanced, with the risk that public trust and confidence in the judiciary and in 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, and that the Court is able to trust legal representatives to take the necessary steps to ensure that the orders made by the Courts are obeyed.
It will be appreciated from the history we have related that it was a matter of pure serendipity that the breaches of the judge’s Order were discovered. As indicated above, he was alerted to the fact that something was amiss by the appearance on a screen of one of the remote witnesses, before he was due to give his evidence (this was an innocent coincidence: the witness concerned was a defence witness who had been sent a separate zoom link in order to carry out a test in advance of the video conference).
It is difficult to think what more the judge could have done to express what was and was not permissible. Both Ms Robertson and Ms McIntyre accept that they read his Order. Ms Robertson obviously understood it, because she was able to tell her client on the Sunday night that the Zoom link was not to be disseminated even though it appeared to be a public link with no security protection. In that context, we note with considerable concern that this was a breach of the terms on which permission had been granted for the transcription of court proceedings by a non-court service provider.
The solicitors’ explanations
In her first witness statement, Ms Robertson says that on the morning of the first day of the hearing it was not clear who should or should not be in courtroom 73. This however was clear from the order made at the pre-trial review by consent. Ms Robertson ought to have been familiar with its terms, which were that the press and the public were to have access to the proceedings from court 72; and that apart from the judge, the Opus 2 technicians and necessary court staff, for reasons connected with social distancing and safety, only the parties and their lawyers and any witnesses giving live evidence were to be allowed into court 73.
Ms Robertson says that at one point she overheard a discussion about a Zoom link to court 72. She was reminded of what Mr Dvas had said to her the previous night about the Zoom link being unsecure and she asked Ms McIntyre whether the Zoom link was streaming the trial and whether it was unsecure. Ms McIntyre said that she thought so, and Ms Robertson asked her whether it would be “OK” for the clients’ US team to use it too. Ms Robertson thought that Ms McIntyre said yes, but on reflection she believes they may have been at cross purposes. Rather than stopping to think, or to ask whether the Order of 14 July had been varied or generally inquiring into the position, she then told Mr Dvas that it appeared to be “OK” to send the link to the clients’ US lawyers.
According to Ms McIntyre’s evidence however, Ms Robertson was having a discussion with the associate solicitor about the transmission problems Opus 2 was experiencing and the Zoom link that had been circulated and she briefly joined the conversation, for no more than a minute or so. Whilst she could not recall precisely what was said in that brief conversation, she remembered making a comment to the effect that it was a public hearing and that members of the public have the right to attend it. She could not recall Ms Robertson asking her a question about the circulation of the Zoom link, but she accepted that she may have done so and that there may have been a misunderstanding.
Later on in her first witness statement Ms Robertson says that on reflection, she believed that because an unsecured Zoom link had been set up and was being used in the court room next door, she took it to follow that it was permissible for the link to be used remotely by people such as the US lawyers, who would have been in the court if it were not for the Covid 19 restrictions. She said she was influenced by the fact that the Zoom link had been sent to various people by Opus 2 in what seemed to be a routine way.
In her second witness statement Ms Robertson says that she had not read the Order of 14 July closely and did not at that time fully apprehend the general prohibition on the live streaming of court proceedings. Had she apprehended it she would not have acted as she did. When she heard about the live streaming of the proceedings by Zoom link to those in the next-door courtroom she should have realised that this did not amount to a general authorisation of live streaming, because the next-door court was to be regarded as part of the courtroom in which the trial was taking place. All of that is clear to her now.
Later on, on the first evening of the trial, Mr Dvas sent a text to Ms Robertson asking whether it was possible for the link for the following day’s hearing (by now password protected) to be sent not only to Mr Gurvitz, one of the claimants’ US lawyers, but to a Mr Bezruchenko, a director of the corporate claimant and Mr Borodin, an investor in the group to which the corporate claimant belongs. She told him (wrongly) that this would be fine. Ms Robertson says that at the time of these exchanges she had not read the case of Spurrier to which express reference was made in the Order of 14 July. She offers no explanation for her failure to do so. It appears that the claimants then asked the associate solicitor to forward the link to Mr Gurvitz rather than do this themselves. In fact, the associate solicitor forwarded the link to him twice, once apparently at his request.
These various explanations are difficult to comprehend and lack coherence. They do not address how the link came to be sent to members of the families of Mr Gubarev and Mr Dvas in Cyprus and Russia, unless it be the case that that those gentleman were given the impression by Ms Robertson that they were free to do so. Nor do they explain satisfactorily why someone of Ms Robertson’s seniority thought it would be acceptable for what she knew to be an unsecure link to be sent to anyone, let alone without any restrictions on it being forwarded to others. In that context, it is to be noted that the judge was moved to spell out the prohibitions that he did, precisely because of the evidence before him of the wish of the US lawyers to participate in the hearing remotely: see paras 14 and 17 above. Ms McIntyre, with a much closer involvement in the conduct of the proceedings than Ms Robertson, could and should have been in the position to resolve any misapprehensions on the part of her more senior colleague. She should also have been aware that the associate solicitor was disseminating zoom links to the US lawyers and should have stopped it from happening. Neither she nor Ms Robertson appears to have thought it appropriate at any stage in this unfortunate debacle to take the simple step of looking at the Order itself or of speaking to their counsel before giving any advice to their clients or instructions to the associate solicitor.
Even if the explanations are to be taken at face value however, the picture that they paint is an unhappy one, demonstrating a casual attitude towards orders of the Court which falls well below the standards to be expected of senior and experienced legal professionals, and a lack of appropriate guidance and supervision of more junior staff, in a matter of importance. Furthermore, until the judge made plain how seriously he viewed what had happened, there appeared to be a lack of focus on and engagement with the seriousness of the breaches. It is regrettable in that context that Ms Robertson’s first explanation to the judge as to who had been sent the links in breach of the Order (see paras 42 and 43 above) was given before proper inquiries had been made by her about the position, and proved to be inaccurate. However, we accept, as did the judge, that this matter has been taken extremely seriously thereafter; and that Ms Robertson has frankly accepted her responsibility for what happened and has made a full and unreserved apology to the Court. We further accept, as did the judge, that this was not a case of deliberate defiance of the Court’s Order.
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. They may result in the papers being sent to the Solicitors Regulation Authority (“SRA”) or to Attorney General with a view to considering whether proceedings should be brought for contempt of court, a course which Warby J actively contemplated in this case.
“The court … intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.
That is a warning for the future. We hope it will be unnecessary to have to have any further hearings of this kind or to refer anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court’s requirements.”