David Huber v X-Yachts (GB) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 17 November 2020 |
| Neutral Citation | [2020] EWHC 3082 (TCC) |
| Date | 17 November 2020 |
| Docket Number | Case No: HT-2019-000124 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2020] EWHC 3082 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Rolls Building
Fetter Lane,
London, EC4Y 1NL
Mr Justice Kerr
Case No: HT-2019-000124
Mr Richard Slade (of Richard Slade & Company, Solicitors) for the Claimants
Mr Robert Grey (instructed by Direct Access) for the Defendants
The court received written submissions
Approved Judgment
This is my ruling with brief reasons on arrangements for a trial by remote hearing fixed to start on 30 November 2020. Fraser J on 23 October 2020 directed that “[t]he trial shall be conducted remotely using Skype for Business or such alternative platform as the trial judge may order.” I fully concur with that direction; indeed, in the present circumstances the trial could not take place in any other way since the parties are based in Spain and Denmark and cannot travel to England at present. No adjournment is sought by either side.
The claim arises from alleged defects in the Silver X, a yacht supplied by the defendants to the claimants in May 2009. The issues are: on what terms the claimants contracted to buy the yacht; whether ownership transferred; if so, on what terms; whether the yacht was defective; whether the claimants are entitled to reject her; whether they have validly done so; whether they are entitled to damages; and if so, in what amount. The claim is for upwards of €500,000.
The trial is fixed for six days from 30 November 2020. I am assigned as trial judge. The claimants are represented by solicitors and counsel. The defendants are represented by direct access counsel, though Fraser J has directed that they consider also appointing solicitors before the trial starts and that they must either appoint solicitors or explain their reasons for not doing so.
The claimants are currently in Mallorca. In the pre-trial checklist filed on 21 October 2020, the claimants sought a remote hearing on the following basis:
“Due to the unprecedented COVID virus situation. The First Claimant is in [an] at-risk category, being older than 60 years old. The Second Defendant is a company incorporated in Denmark. Its representatives would need to travel to the UK to attend an in-person hearing, which is unreasonable in the current climate.”
The claimants' witnesses of fact are the two claimants in Mallorca, who are husband and wife. The defendants' witnesses of fact are Mr Jens Ole Skott, based in Haderslev, Denmark; and Mr Stuart Abernethy, based in Hamble, Southampton. Each side will call one expert in biodeterioration and one expert in yacht surveying, making a total of four experts. I understand the experts are all based in England.
The defendants or their associated companies (collectively X-Yachts) are located in Southampton, Denmark and the Republic of Ireland. The second defendant is incorporated in Denmark. The company secretary of the England and Ireland based companies is Ms Deborah Weldon. Following Fraser J's direction, she emailed my clerk on 13 November 2020 asking that various named individuals be permitted to attend the hearing remotely from Ireland and Denmark as well as England.
The twelve named individuals from Denmark are all connected to X-Yachts, the Silver X, the claimants or this case in various ways. They include Mr Skott who is a witness, various shareholders and employees of X-Yachts companies and its Danish lawyer. From Ireland, permission to attend remotely is sought for Ms Weldon herself, who has coordinated the defence of the claim, and for Mr Conor Fanning, who is the managing director of the first defendant.
Ms Weldon's request must be read in the light of the defendants' counsel, Mr Grey, subsequently submitting in writing (as I shall shortly mention) that the court is not empowered to permit remote access to the trial for anyone outside the jurisdiction. Mr Grey did not expressly countermand Ms Weldon's request. I will assume that her request stands and should be considered if I reach the view, contrary to Mr Grey's submissions, that I have power to authorise the attendance of the 14 named individuals in Ireland and Denmark.
It is common ground that all witnesses of fact and expert witnesses can give their evidence by video link, whether from within or from outside the jurisdiction. There is no difficulty about this. The issue that has arisen is whether the parties and others can attend and observe the remote hearing from locations outside England and Wales, other than when giving evidence. I alerted the parties to the question whether that would be lawful and have received submissions on the issue by email in the last few days.
From those submissions the issues that emerged are as follows: (i) should the court direct a video only hearing (ii) if so, would persons outside England and Wales be allowed to attend by video link. As to (i), the claimants positively encourage me to do so and the defendants do not object to that course, which is clearly in harmony with Fraser J's direction. I am content to make such a direction pursuant to section 85A(1) of the Courts Act 2003 (added by section 55 of and schedule 25 to the Coronavirus Act 2020).
I therefore direct that the proceedings are to be conducted wholly as video proceedings. I am therefore 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 is whether such “members of the public” must attend from a location in England and Wales, or whether they may do so from elsewhere.
The claimants submit that I can permit persons to attend remotely from outside this jurisdiction (England and Wales). They assert that this would not infringe the prohibition against the High Court sitting outside England and Wales implicit in section 71 of the Senior Courts Act 1981, which provides that “[s]ittings of the High Court may be held, and any other business of the High Court may be conducted, at any place in England or Wales”.
The claimants' submissions were made through Mr Richard Slade, their solicitor. They rely on Peer International Corporation v. Termidor Music Publishers Ltd [2005] EWHC 1048 (Ch). Lindsay J held at [8] that he was not prevented by section 71(1) from taking evidence abroad, in Cuba, as an examiner under CPR rule 34.13; were he to do so, the court would not be sitting outside England and Wales.
The claimants submit that if a judge taking evidence in Cuba is not caught by section 71 “it is difficult to see how someone listening from abroad to proceedings that do not involve the judge setting foot outside the jurisdiction could be.” Mr Slade submits further that where the current pandemic makes a video only hearing necessary, “nothing takes place in the courtroom” and “the transmission itself is the hearing rather than being a transmission of a face-to-face hearing”.
Mr Slade recognised the concerns expressed by the Divisional Court in Gubarev v Orbis Business Intelligence Limited [2020] EWHC 2167 (QB), [2020] 4 WLR 122 (a hybrid hearing case) that remote attendance reduces the court's ability to maintain control of the proceedings and enhances the opportunity for misuse; see the judgment of the court given by Dame Victoria Sharp P at [48]ff. It must be recognised, further, that remote attendance from outside the jurisdiction makes the sanction of contempt of court more difficult to enforce.
The defendants submit, through their counsel Mr Grey, that section 85A does not empower the court to permit the broadcasting of proceedings to locations outside England and Wales. Mr Grey points out that section 85B of the 2003 Act creates criminal sanctions for unauthorised transmission of an image or sound which is being broadcast in accordance with a direction under section 85A of the 2003 Act.
The defendants assert that the customary warning against such unauthorised transmission given at the start of remote hearings would be of little use if persons are attending from overseas, beyond the reach of the court's coercive powers. They submit that Peer International is not in point; it turns on its facts and is, in Mr Grey's words, “certainly not a precedent for the holding of the hearing being held simultaneously in different jurisdictions”.
The defendants submit, accordingly, that while witnesses can give their evidence by video link from outside England and Wales, observers cannot attend remotely from outside England and Wales. This would apply to witnesses, even if they are also parties, save when they are giving their evidence. They could not be permitted to attend the hearing remotely before or after giving their evidence, for example, to hear what is said by another witness.
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