TRANSCRIBERS, LIVE RECORDING AND COURT HEARINGS: COURT SENDS OUT A WARNING: FOLLOW THE RULES AND GET PERMISSION IN ADVANCE

In JR & B Farming Limited v Hewitt [2021] EWHC 1704 (Comm) HH- Davis-White QC (sitting as a High Court judge) issued a clear warning to parties and transcription services that they must follow the correct procedure if a record is to be made of remote hearings.

“… the key points to note are that:

(1) whatever the form of hearing, real time transcription requires the permission of the court and therefore a specific court order;

(2) the court will frequently wish to regulate to whom any such real-time transcript may be disseminated;

(3) the relevant form, currently Ex 107 OFC will need to be completed both by the relevant party and the transcriber and submitted to the Judge when an order and his or her approval is sought.

(4) any order should be provided to the transcribers and their usual practice should be to require sight of such an order rather than simply assuming such an order is in place and in any event they should provide or offer to provide the relevant form completed by them as appropriate.”

THE CASE

The judge had heard a PTR remotely. The judge discovered that the third party had engaged a transcriber. That transcriber recorded the proceedings and then transcribing it.  No permission had been sought to allow the proceedings to be recorded.

1. 1. The difficulty is that no order had been sought from the Court for permission for such transcription. Furthermore, the Court had only been provided with the electronic details of the transcriber as being one of the participants at the PTR minutes before 5pm the day before the hearing. Enyo sent the link to the remote hearing to the transcribers in case the court had not received details of the transcriber as participant in time. I was not provided with the list of participants, there was no relevant order and accordingly I was unaware of the transcriber’s role until it was mentioned that a transcriber might need a short break.

1. I was extremely concerned about the position and although I made an order giving permission for the transcription to be made and from after the short adjournment, I reserved the question of what action to take regarding the morning part of the hearing for future decision. I also laid down a timetable under which both Enyo and Epiq were given an opportunity to file evidence and submissions. I have received a witness statement from Mr Nic Jones, the solicitor and partner of Enyo with responsibility for the conduct of the third party’s case. I have also received a communication from Mr Allen, Enyo’s compliance partner. Finally I received a statement from Mr Wagstaff, Senior Operations Director of Epiq.

THE JUDGE’S COMMENTS ON THE BREACHES

The judge set out the law and principles in relation to the recording of court hearings in detail.  He noted that there were breaches of the rules.

1. 1. In this case it can be seen that there were failures in (a) a recording being taken without court permission and (b) in the transcribers being joined as an entity to whom a live stream was made available without express permission of the court.

1. 1. I have to consider whether not to make a retrospective order permitting the real-time transcript and the associated recording and/or, so far as the solicitor is concerned, whether to refer the matter to the Judge in charge of the jurisdiction either to issue a show cause letter (and if necessary to refer the matter to the Divisional Court) or to report the matter to the regulatory authority, the SRA.

1. 1. As regards the latter point, I am told that Enyo has self-reported the matter to the SRA. It has also reconsidered and recirculated internal guidance within the firm. Mr Jones made an immediate full and frank apology to the court. In the particular circumstances of this case it seems to me that that is sufficient and that I need take no further steps under the Hamid jurisdiction, save to require a copy of this judgment to be sent to the SRA. I should make clear that by this judgment I do not intend to indicate what course the SRA should take and I am certainly not indicating that the breach in this case was not serious.

1. 1. For the future, lawyers should be in no doubt as to the requirements for using live transcript services, whether the hearing is fully remote, hybrid or face to face. The court is unlikely to take the course that I have done in the future were the requirement to obtain court permission for a real-time transcript not to be observed.

1. 1. I have also concluded that I should grant relevant permission for the real time transcript with retrospective effect. It will be a term of the permission that any judgment that was given in the relevant period (I suspect that there was none however) (once approved by me) shall be made available to all parties in the case and that for the avoidance of doubt that there should be lodged a written acknowledgement by Epiq that the form EX 107 OFC already lodged encompasses the entire PTR.

1. 1. In summary, the key points to note are that:

(1) whatever the form of hearing, real time transcription requires the permission of the court and therefore a specific court order;

(2) the court will frequently wish to regulate to whom any such real-time transcript may be disseminated;

(3) the relevant form, currently Ex 107 OFC will need to be completed both by the relevant party and the transcriber and submitted to the Judge when an order and his or her approval is sought.

(4) any order should be provided to the transcribers and their usual practice should be to require sight of such an order rather than simply assuming such an order is in place and in any event they should provide or offer to provide the relevant form completed by them as appropriate.