Gubarev & Anr v Orbis Business Intelligence Ltd & Anr

[2020] EWHC 2167 (QB)

In last month’s Dispatch we included a warning from a case where the failure to shut down a laptop meant that a Judge’s private comments were broadcast to others on a hearing. This month, a warning not to share links to court hearings, however easy it may seem to do. Here, three days of a hearing were live streamed to a number of individuals outside the jurisdiction without the Court’s permission and without any application being made for such permission. At least seven people had used a Zoom link in remote locations to access the trial. Warby J had stated in an Order that:

“I note that there is no application for transmission to participants, outside the second courtroom. But the general position with regard to video and audio hearings in Court is that:

(1) it is permissible to make video and audio recordings and transmit them to a second courtroom, or other location in England and Wales which is designated as an extension of the Court.

(2) exceptions have been made for live streaming from the Supreme Court, Court of Appeal, and certain sentencing remarks: but

(3) otherwise, live streaming of video and audio is prohibited…” 

As the hearing was not going to be conducted wholly remotely, the provisions of the Coronavirus Act 2020 which enable the Court to permit live streaming in certain circumstances were not relevant. When the case came to the hearing, because of the Covid-19 social distancing requirements and working restrictions, a second court room was used and a feed was provided to that court, using Zoom.

During cross-examination, the Judge noticed that one of the remote witnesses was on one of the video screens and that he could obviously hear what was going on. This was contrary to the prohibition made in the Order. After investigation, the Court accepted that the breach of the Order had come about because of a failure to investigate and understand what could and could not be done in compliance with the Court Order. The Court noted that a hearing:

“is not a live-streamed event unless the Court decides that it is both lawful and appropriate to make it such. It is not an event, even if it is taking place in court, that can be lawfully made open to any remote party that the participant parties, let alone the service provider, chooses to let in.”

In the normal way, a judge can see and hear everything that is going on in court. For example, this means that a judge can see who is present, and whether a witness who is giving live evidence has been present in court observing and listening to the evidence of other witnesses. The judge can see whether someone is attempting to influence, coach or intimidate a witness whilst they are giving evidence. This control should extend to the recording of images and sounds of what goes on in court and what is then used outside court. Given that, once live streaming or any other form of live transmission has taken place, that ability to maintain control will be diminished and the opportunity for misuse (via social media for example) will be correspondingly enhanced. 

Accordingly the Court warned that it was critical that those who have responsibility for the conduct of proceedings understand the legal framework within which those proceedings are conducted, and that the Court is able to trust legal representatives to take the necessary steps to ensure that the orders made by the Courts are obeyed.

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