Aleksej Gubarev v Orbis Business Intelligence Ltd
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P. |
| Judgment Date | 06 August 2020 |
| Neutral Citation | [2020] EWHC 2167 (QB) |
| Date | 06 August 2020 |
| Docket Number | Case No: QB-2017-002808 |
| Year | 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 2167 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
THE HONOURABLE Mrs Justice Andrews DBE
Case No: QB-2017-002808
and
Mr Patrick Lawrence QC instructed by and on behalf of McDermott Will and Emery LLP and Ms Ziva Robertson
There was no other appearance or representation
Hearing date: 31 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the judgment of the Court.
On 28 July 2020 the judge presiding over the trial in this libel action, Warby J, referred to this Court for an urgent hearing under the Hamid 1 jurisdiction, serious issues relating to the professional conduct of the solicitors acting for the claimants, McDermott Will and Emery LLP (MWE) and Ms Ziva Robertson, a partner in that firm, which had fallen far short of the standards required of those conducting legal proceedings before the courts of England and Wales.
The judge found that there had been misconduct in the form of a breach of section 41 of the Criminal Justice Act 1925 and/or section 9 of the Contempt of Court Act 1981 and/or disobedience to paragraph 8 of an Order which he had made in the proceedings on 14 July 2020, in that for 3 days in July 2020 video/and or audio of the proceedings at the trial of the action was live streamed to a number of individuals outside the jurisdiction (including the United States, Cyprus and Russia) without the Court's permission and without any application being made for such permission. At that stage, the judge had been given a list of 7 people who had used a Zoom link in remote locations to access the trial, and information that possibly 2 more had done so.
This state of affairs is deeply worrying. The speed with which this hearing was convened to take place before the end of term, and shortly after the conduct was discovered, marks the seriousness with which we view the behaviour of those concerned.
Background
On 25 June 2020, following a remote hearing by telephone, Jay J gave directions for the trial of this claim to take place on a socially distanced basis. These included a direction that the persons permitted to physically enter the courtroom would be limited to (i) the judge and their clerk (ii) the parties' identified legal representatives; (iii) the parties and their witnesses; (iv) the associate and court clerk; and (v) the stenographer(s) and others providing document management and/or electronic bundling services for the trial. No other individuals were allowed to physically enter the courtroom. A second socially distanced courtroom would be reserved to enable members of the press and public who wished to observe the trial to do so via a live video feed.
Jay J's order, to which the parties had consented, had annexed to it a Memorandum which confirmed that these arrangements had been proposed by the defendants and agreed to by the claimants.
It is unnecessary for us to say anything about the subject-matter of the libel action, save that it would have been obvious to all concerned that it was likely to excite a certain amount of press interest. As the parties and their representatives knew and had
agreed, members of the press would have to access the hearing from the second courtroomThe Memorandum went on to indicate that at present it was intended that only one witness would be giving live evidence in the court room and the remaining four witnesses would be giving their evidence via video link: one, a Mr Roman Grinin, from St Petersburg, another, Sir Andrew Wood, from the Channel Islands, and two more from the Düsseldorf office of MWE. In the event, the latter two witnesses were able to attend and give their evidence in court.
The Memorandum also recorded that the parties had discussed the use of the Opus 2 system for the electronic platform to be used at trial and that they were in the process of obtaining a quotation for the cost, which the parties would share. They were also going to investigate the practicalities relating to overseas witnesses and their ability to see the judge and the person questioning them over the video link.
The trial was listed for a five-day hearing before Warby J starting on 20 July. On 8 July, the Queen's Bench listing officer received an email from an associate solicitor at MWE, expressed in peremptory and inappropriate terms. It said:
“[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 2 nd 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 listing officer sent an email to the associate solicitor in response, explaining that Court 73 had been set aside for the trial, and that none of the courts in the Rolls building that could have accommodated the trial were available during the week of 20 July 2020.
The email also included the comments of the judge about the communication from MWE. The judge described its wording as “unfortunate”, deprecated the use of the word “require” and made it clear that it was not for the parties to make “demands” in such terms. As the judge pointed out, the management of the trial is a matter for the Court, which has to bear in mind the needs of other cases, the limits on its resources, and the applicable substantive and procedural law. The judge went on to say this:
“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.”
Following these appropriate admonitions, and the identification by the judge of what was required, MWE, through the associate solicitor, issued an application notice supported by evidence from her on 10 July 2020 on behalf of the claimants, seeking permission from the Court, amongst other matters: (i) for the parties to use Opus 2 as a transcriber; (ii) for Opus 2 to provide a live audio and video feed of the trial to the adjacent courtroom, subject to such courtroom being available; (iii) for Opus 2 to have access to the courtroom in the week of 13 July 2020 to conduct urgent connectivity testing before the commencement of the trial, and to allow for all parties to undertake a test run of the facilities, and (iv) for Mr Grinin and Sir Andrew Wood to give their evidence by video link pursuant to CPR PD 32 para 29.1 and Annex 3. The claimants were stated to be the party responsible for arranging the videoconferencing.
In the evidence section of the application notice, the associate solicitor stated that the claimants would make all necessary enquiries with Opus 2 about the logistics of the videoconferencing facilities (VCF) and inform the Court of the outcome. She said that the claimants would also ensure that the VCF session was as close as possible to the usual practice in a trial court where evidence is taken in open court. Her evidence then continued as follows:
“B. The parties further discussed the use of Opus 2 as a platform to accommodate the hybrid nature of the trial. It was agreed that such use of the platform would be appropriate. In particular, it was agreed that it would be useful for the judge and the parties to have a real-time transcription of the proceedings, including a live audio-visual recording,...
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