Huber & Anr v X-Yachts (GB) Ltd & Anr
[2020] EWHC 3082 (TCC)
The trial here was fixed as a remote hearing. It could not have taken place in any other way as the parties were based in Spain and Denmark and could not travel to England at present. It was common ground that all witnesses of fact and expert witnesses could give their evidence by video link, whether from within or from outside the jurisdiction. There was no difficulty about this. The issue that arose was whether the parties and others could attend and observe the remote hearing from locations outside England and Wales, other than when giving evidence.
Mr Justice Kerr directed that there be a video only hearing pursuant to section 85A(1) of the Courts Act 2003 (added by section 55 of and schedule 25 to the Coronavirus Act 2020). This meant that he was empowered to direct further “that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings” (s. 85A(1)(a)). The question was whether such “members of the public” must attend from a location in England and Wales, or whether they may do so from elsewhere.
X-Yachts said that whilst witnesses could give their evidence by video link from outside England and Wales, observers could not attend remotely from outside England and Wales. This would apply to witnesses, even if they were also parties, save when they were giving their evidence. They could not be permitted to attend the hearing remotely before or after giving their evidence, for example to hear what was said by another witness.
The Judge disagreed. The backdrop against which the 2020 Act was enacted included keeping the courts running as far as possible and using technological means to do so. Civil litigation in England and Wales frequently has international dimensions. Indeed, Mr Justice Kerr noted that long “before the pandemic, civil litigation here frequently included the now commonplace feature of remote attendance by a witness giving evidence from abroad”.
It was also well known when the 2020 Act was passed that the prevalence of the virus and the concern of states to inhibit its spread were causing widespread restrictions on international travel and would lead to a commensurate increase in the use of electronic communication techniques to keep conversations going across international borders.
There was also a question of fairness, and Huber would be prevented, apart from when giving their evidence, from remotely attending the trial of their own case, being in Mallorca and unable to travel to England. Also, on X-Yachts’ case, where a party’s witnesses happened to be in the jurisdiction, they would be able to see and hear what other witnesses say, while witnesses located outside the jurisdiction would not.
When it came to what directions to give concerning the manner in which the proceedings were to be broadcast for the purpose of enabling persons to see and hear them, then that was a matter of discretion. Here the Judge was willing on a cautious basis to permit some remote attendance from abroad, subject to safeguards.
Specifically, the Judge referred to named attendees, including the parties and representatives, who could attend the full trial remotely. The Judge also required a list of attendees, providing details of the capacity in which they would attend, and the address from which they would do so, including email and telephone details.
The legal representatives on each side bore responsibility for informing all those attending remotely of the strict prohibition against any unauthorised dissemination of the hearing or making any sound or video recording of it. This is an important consideration, as this is very simple to do. They were also responsible for ensuring that any person or entity enlisted to provide technical support or assistance is made aware of those strict prohibitions.
Further, those attending, whether from inside or outside the jurisdiction, would have to provide a signed undertaking confirming that they were aware of the contents of the court’s order and that they understood they were prohibited from broadcasting, disseminating or recording the proceedings further by any electronic means and that if they did so they may be found in contempt of court and liable to criminal penalties.
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