JR & B Farming Ltd v Christopher Hewitt
| Jurisdiction | England & Wales |
| Judge | Davis-White |
| Judgment Date | 24 June 2021 |
| Neutral Citation | [2021] EWHC 1704 (Comm) |
| Docket Number | Case No: CC-2020-NCL-000006 |
| Court | Queen's Bench Division (Commercial Court) |
[2021] EWHC 1704 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN NEWCASTLE UPON TYNE
CIRCUIT COMMERCIAL COURT (QBD)
HH JUDGE Davis-White QC
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CC-2020-NCL-000006
and
Mr John Greenbourne (instructed by Sintons LLP) for the Claimant
Mr Francis Bacon (instructed by Hay & Kilner LLP) for the Defendant
Mr Aaron Walder (instructed by Enyo Law LLP) for the Third Partry
Hearing date: 1 April 2021
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.
HH JUDGE Davis-White QC (SITTING AS A JUDGE OF THE HIGH COURT)
HH Judge Davis-White QC:
This judgment concerns the requirements for litigants to meet if they wish to use live-time transcription services in relation to court hearings.
On 1 April 2021 I conducted a Pre-Trial Review (the “PTR”) in this case on a fully remote basis. The facts of the case are irrelevant to the issue that this judgment deals with but, put shortly, involve allegations of negligence against the first defendant in failing to preserve the security of tenure of the claimant as a tenant under the Agricultural Holdings Act 1986 by failing to take adequate steps in relation to service of a counter notice under that Act. The first defendant is a solicitor who at the relevant time acted as a consultant to a firm of accountants, the Third Party. Since the hearing of the PTR, the third party has also been joined as second defendant under its current name.
At the PTR, shortly before the short adjournment, it became apparent to me that the third party's solicitors, Enyo Law LLP (“Enyo”), had engaged a firm of transcribers to provide a transcript of the hearing that day. The transcript was accordingly not being made from the court's recording of the hearing by an official transcriber. Instead the transcript was prepared directly from the hearing which involved a transcriber being streamed the hearing and also taking a recording of it. I refer to transcription other than from the court's own recording and which is necessarily after the hearing, as “live-time transcription”.
The transcriber is, as I understand it, an official transcriber but, as I have said, was not acting in that capacity in this case. The transcriber in this case has been described as “Epiq Global” (which I shall refer to as “Epiq”). That is apparently a trading name. I am unclear which legal entity from the “Epiq” group of companies was formally engaged. It may be that it is Epiq Services Limited, which is the name on the email sending me a signed statement from Epiq which I refer to later in this judgment or that it is Epiq Europe Limited which I understand to have a contract with HMCTS for the provision of transcription services.
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.
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.
In the light of the material that I have received it appears that
(1) Mr Jones, as he says in his witness statement, was well aware of:
“ the strict prohibition on the audio/video recording of criminal and civil Court hearings as well as on the publication/distribution of any such recordings pursuant to the Contempt of Court Act 1981. That awareness arises as a general point of my practice as a solicitor, but it has also been reinforced recently by the incident in Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2167 (QB)” 1
(2) However, he did not realise that Epiq would be recording anything and thought that in preparing a transcript they were simply transcribing the hearing as it went ahead without taking a recording.
(3) Epiq's position is that it is for their client to obtain all necessary consents or orders from the Judge and that this is made clear in their terms and conditions which relevantly provide:
“ 2. Where applicable, all licences and consents must be obtained and maintained by the Client prior to the commencement of Services.”
I accept what Mr Jones says but am somewhat surprised. In my experience when transcribers have been employed to attend court to take a transcript it has been their invariable practice to attend with their own recording equipment. According to Epiq:
“ As part of Epiq Europe Ltd's contract with HMCTS for the provision of real-time transcription services, Epiq Europe Ltd is required to ensure that their personnel attend the venue with the relevant equipment to enable a verbatim note to be taken of proceedings. This equipment must also have the ability to immediately recall what has been said, if required to do so by the judiciary during proceedings. Epiq Europe Ltd is required to provide all equipment (both hardware and software) to enable them to undertake computer aided transcription. All equipment used for the production and subsequent delivery of the transcript must meet the IT requirements laid out by HMCTS in the contract.”
However, it is far from clear to me from the Epiq terms and conditions provided that a live transcript involves a recording also being taken and I accept Mr Jones' position that he was not alerted to the question of any recording being envisaged from the Epiq terms and conditions.
At this point I should return to Gubarev v Orbis Business Intelligence Ltd. In that case there had been a referral to the divisional court of a case under the Hamid (see R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin); [2013] CP Rep 6 and R (Sathivel) v Secretary of State for the Home Department [2018] EWHC 913 (Admin); [2018] 4 WLR 89 jurisdiction. The circumstances of such referral were that a Judge in a hybrid trial (that is one conducted in and from a court room but where certain persons were attending the court remotely over a video platform), had found breaches 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. The breaches involved three days in July 2020 over which 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.
The scope of the prohibition in s9 of the Contempt of Court Act 1981 is conveniently set out in s9(1):
“Subject to subsection (4) below, it is a contempt of court—
(a) to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court;
(b) to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication;
(c) to use any such recording in contravention of any conditions of leave granted under paragraph (a).
(d) [deals with proceedings in the Supreme Court]
In the case of Gubarev the court was not dealing with “fully remote” hearings and the provisions of the Coronavirus Act 2020. In the case of such fully remote hearings it is, at the least, arguable that the hearing does not take place in a court room (or location where the Judge is sitting) but that the transmission “ is the hearing and is not a copy of it” (see Huber v X-Yachts UK Ltd [2020] 3082 (TCC). Accordingly, the provisions of s9 of the Contempt of Court Act 1981 have been adopted and adapted for such hearings by the Coronavirus Act 2020 which...
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...without the court's permission. That is because it involves the recording of the court's proceedings. In JR & B Farming Ltd v Hewitt [2021] EWHC 1704 (Comm) his HHJ Davis White QC made reference to the statutory provisions that regulate the recording of court proceedings, section 9(1) of t......