RECORDING COURT PROCEEDING WITHOUT PERMISSION: THE PROBLEM ARISES – AGAIN

In Business Mortgage Finance 4 Plc & Ors v Hussain & Ors [2021] EWHC 2766 (Ch) Mr Justice Miles gave a judgment in another case where a party had recorded proceedings without permission.  Permission was given retrospectively, however this was a surprising mistake given the clear guidance given in June this year in JR & B Farming Limited v Hewitt [2021] EWHC 1704, a decision discussed on this blog here.

 

THE CASE

During the course of an action it became clear that numerous recordings had been made of various hearings that had taken place.  In each case the courts were aware that a transcript was being taken, but not that a recording was being made.  Permission is required to record a court hearing.  The claimant applied for retrospective permission. The transcribers (Epiq) also appeared as parties in the retrospective permission application.

THE JUDGMENT ON THIS ISSUE

The judge granted retrospective permission.  He was surprised that no effective steps had been taken following the decision in the Hewitt case. He was satisfied that appropriate steps to prevent recurrence had now been taken.

Ruling on the application or retrospective permission to record proceedings
    1. There is a series of applications made in a number of separate proceedings for retrospective permission to record those proceedings for the purposes of the transcribers, Epiq Europe Limited (“Epiq”) making transcripts of the proceedings.
    1. The background is this. As I have already said, there has been a large number of proceedings connected with the interference carried out by Mr Hussain and individuals or entities associated with him against the various applicants. In broad terms, the applicants are either the issuers of various securitisation notes or other parties in some way connected with the securitisations. The issuers of the notes are known as the “BMF issuers” and the holding company is BMF Holdings. This has led to proceedings in the Financial List, but also in other parts of the Business and Property Courts, and, more recently, there have been two hearings in a set of proceedings in the ICC to do with the rectification of the various companies’ registers at Companies House. I will refer to the first group of proceedings as the “Financial List proceedings”, albeit not all of the cases were in fact in the Financial List, and the latter two hearings as the “rectification claim”.
    1. The applicants at the various hearings were historically, and are still, represented by Messrs Simmons & Simmons LLP. The relevant hearings consist of some six hearings in the various Financial List proceedings and two hearings in the rectification claim. The defendants in the various proceedings included Mr Hussain and a large number of companies and individuals alleged to be associated with him in taking steps concerning the BMF securitisations. Another company involved in the recent rectification claim was “Kipling Firs”. That is a company of which the director, or one of the directors, is said to be Mr Artemiou. I have already dealt with the way in which I decided to address some materials filed by Mr Artemiou and some emails sent by him to the court last Friday.
    1. The reason for the present applications is that Epiq prepared audio recordings of the eight relevant hearings without the relevant Form EX-107 having been completed by Simmons & Simmons or Epiq. Epiq prepared the audio recordings to enable them to produce transcripts. The evidence shows that, in most cases, the audio recording was routinely deleted after the relevant transcript had been prepared and approved. The only purpose of producing the audio recordings was, as I say, to enable the transcripts to take place. It appears clear that, in each of the various hearings, the tribunal was aware that a transcription was taking place, but was not necessarily aware that an audio recording was being prepared too. The evidence shows that the solicitors did not realise that the hearings were being recorded.
    1. I have been taken to two witness statements of Ms Caroline Hunter-Yeats, a member of Simmons & Simmons, who was the lead partner for the BMF companies. I have also been taken to two witness statements of Mr Timothy Boyce, who is also a member of Simmons & Simmons, and who was instructed to investigate what had happened once it emerged, in the course of the ICC hearings, that an unauthorised recording had taken place.
    1. On the basis of that evidence, I have no doubt that as far as Simmons & Simmons and their lay client is concerned, the unauthorised recording was entirely inadvertent. The solicitors knew of the prohibition on unauthorised recording but did not know that the recording had taken place. As soon as they learnt of the fact that recordings had taken place, they immediately apologised to the court, reported themselves to the Solicitors Regulation Authority, made the applications for permission very quickly, and appointed Mr Boyce to investigate what had happened. Simmons & Simmons have also put in place further processes and procedures internally so that the issue is properly flagged up in its dispute resolution department.
    1. As regards Epiq, in a decision published on 24 June 2021, called JR&B Farming v Hewitt [2021] EWHC 1704 (Comm), HHJ Davis-White QC set out a clear and comprehensive statement of the relevant legal principles. He concluded that, in any case where there was a transcription taken and an audio recording was taken for that purpose, advance court consent was required. He also held that Epiq’s terms and conditions did not clearly explain to their clients that they were responsible for an audio recording and that an audio recording would be taken in the case of a live-time transcription. It is unfortunate that though that judgment was published in June of this year, the two further hearings took place before ICC judges in July and August without Epiq ensuring that the audio recording was properly consented to by the court in advance.
    1. I heard from counsel for Epiq, Mr Gillow, who explained that, as far as Epiq was concerned, their terms and conditions required the client to ensure that all necessary consents were obtained, and that that applied both to the process of transcription and to the audio recording. That submission was not entirely satisfactory since HHJ Davis-White had already ruled, in June 2021, that its terms and conditions did not make it clear to solicitors that wherever a transcription was taken there would also be an audio recording.
    1. After some further exchanges, Mr Gillow went on helpfully to explain that from today, Epiq will be putting a notice on the front page of their order form for transcriptions that the consent of the court is required for audio recordings and for transcriptions, and that an EX107 form will have to be properly filled in before the transcription process can take place. He also explained that Epiq would be contacting existing bookings to alert them to this issue, which should cover cases where existing customers have already booked Epiq to carry out a transcription but were unaware of the problem arising in relation to the need for an EX107 form.
    1. The first question for me is whether I should grant retrospective permission in relation to the eight hearings. I am satisfied that it is appropriate to grant retrospective permission. First, the audio recordings were taken in order to allow the transcriptions to take place, and only for that purpose, and have not been used for any other purpose, published or disseminated in any way. Second, I am in no doubt that had the court been asked for consent in respect of any of the hearings, it would have granted consent. Third, no harm has arisen as far as the other parties to the proceedings are concerned. Fourth, it is important that the integrity of the court’s process is properly protected (and the applicants did not seek to suggest that what had happened was not serious) but on the other hand, I am satisfied that the applicants and Simmons & Simmons have taken all appropriate steps since finding out about the unauthorised recordings to put the matter right, to make this application and to put in place protections against a similar breach occurring in the future. Fifth, Epiq’s position is separate and should not affect the position as regards the applicants. It is unfortunate that the steps which they are now saying they will take were not taken earlier but I am satisfied that they have now taken proper steps to seek to prevent a similar breach.
    1. I therefore consider it appropriate to grant retrospective permission. In reaching that decision, I should make two other points. First, that I think it appropriate to make such an order in respect of all of these eight hearings, notwithstanding that different judges heard them. The same issues arise in relation to all of them and I have also given directions for these various applications to be listed before me and for notice to be given to all of the various respondents to the applications. None of the respondents have appeared today to oppose.
    1. The second observation flows from the first; it is that Mr Artemiou, purporting to act on behalf of Kipling Firs, has objected in writing to this order being made. But, as I said in an earlier ruling, he has not appeared to make any submissions, and the material he has put before the court is an informal email. I do not think there is anything in anything which he has said which should cause the court to pause before giving retrospective permission. I am concerned that among the documents that he has put before the court is a so-called “charge sheet” addressed to Ms Hunter-Yeats, a copy of which has been sent to junior counsel for the applicants. I have read that charge sheet. It seems to me that there is absolutely no merit or substance in the suggestion that Ms Hunter-Yeats was in any way guilty of criminal conduct in relation to the recording of the hearings. The charge sheet is in my judgment an entirely vexatious and frivolous document. Mr Artemiou also said, in a communication to the court, that criminal proceedings had been instituted in the magistrates’ court against Ms Hunter-Yeats, but the evidence shows that that is not true, and that no such criminal proceedings have in fact been instituted. This episode demonstrates, as the applicants submit, that parties hostile to the applicants are seeking opportunistically to seize on any event to try to muddy the waters. If anything, it seems to me that is a further reason why the court should grasp the nettle and grant retrospective permission.
  1. Finally, I turn to the question of whether any further steps should be taken as regards Simmons & Simmons. The court has a jurisdiction to take various steps, including reporting the matter to the judge in charge of the relevant list, or to the Divisional Court, or to the Solicitors Regulatory Authority. I am entirely satisfied that no further steps should be taken by the court. Simmons & Simmons recognised the error when it was raised by the court in August of this year, they immediately and quite properly apologised for the breach, they took steps to ensure that this would not happen again and they have referred themselves to the SRA. There is no warrant for any further action being taken by the court.