New regulations solve cross-border hybrid hearing issues

The Remote Observation and Recording (Courts and Tribunals) Regulations 2022 were published and came into force on 28 June 2022, under powers given to the Lord Chancellor under the 2022 Police, Crime, Sentencing and Courts Act.

We have previously argued that this was an issue on which the legislature needed to intervene, and the fact that it has done so is welcome for the continued reputation and growth of the English courts as a modern, efficient and open forum for the resolution of cross-border disputes.

Until now, there has been doubt as to whether courts had the power, under the existing legislation, to permit attendance at hybrid hearings by individuals located overseas, causing uncertainty for clients and other participants in international litigation wishing to meaningfully follow hybrid proceedings from abroad. The previous position in hybrid hearings contrasted with that in ‘fully remote’ hearings, the broadcasting of which was expressly provided for in pandemic legislation.

This disparity became increasingly significant as the lifting of pandemic restrictions in the UK – combined with ongoing instances of Covid-19, continued travel restrictions in some parts of the world, and concerns about the cost and sustainability implications of international travel in the context of disputes - has driven the popularity of hybrid, rather than fully remote, hearings.

The issue

The previous difficulties arose because of the terms of the applicable legislation.  In general, neither images nor audio recordings of court hearings may be broadcast, and it is a criminal offence to do so. This is subject to some limited exceptions provided for in primary legislation.  When the pandemic began, the 2020 Coronavirus Act introduced a temporary exception enabling the court to allow broadcasting of hearings conducted “wholly as video hearings”, in the interests of open justice. An equivalent provision was also introduced for fully audio hearings.

As a result, fully remote hearings could be live streamed with the permission of the court. However, these provisions did not apply to hybrid hearings.

By their nature, hybrid hearings involve some element of video transmission outside of the courtroom where the judge and some participants are physically present, with the permission of the court. This was permissible where transmission was to a location within the jurisdiction, the rationale being that the court can designate any place in England and Wales as an extension of the court. However, that rationale did not assist once locations outside of England and Wales were involved.

In addition, a witness may, with the court’s permission and subject to any restrictions imposed by their own jurisdiction, give evidence via video link under the Civil Procedure Rules (CPR). This applies equally to hybrid hearings and witnesses located overseas. However, it was not clear from the CPR whether an overseas witness giving evidence in this way as part of a hybrid hearing could also be permitted to observe evidence given by other witnesses.

It therefore appeared that a person, including a client – who is likely to need to give instructions to their own legal team - outside England and Wales was not permitted to watch a hybrid hearing via video transmission. If that person was also a witness, they could give their evidence via video link provided the necessary permission had been obtained, but there was considerable doubt as to whether they could watch the hearing over the same link before or after they gave their evidence – again causing difficulties where, for example, a witness’ insights on the opposing team’s witnesses was needed for the purposes of cross-examining those witnesses.

This situation led some parties to have to consider workarounds, such as whether to press for a fully remote hearing rather than a hybrid hearing, to ensure key stakeholders overseas could properly participate. While, in practice, we understand that some judges have been taking the view that they were willing to deem foreign locations to be extensions of the court and so to allow attendance from those locations, clarity and certainty on this issue has been much needed.

The new regulations

The new regulations, which apply in all UK courts except the Supreme Court and devolved courts, now address these issues.  They give judges power to permit the transmission of proceedings, without any limit based on whether proceedings are fully remote, hybrid or otherwise fully in-person, nor based on where the person viewing them is located. The old, temporary Coronavirus Act provisions, which referred only to the broadcasting of fully remote hearings, have been repealed.

The permission of the court is still needed for any transmission or recording of proceedings, and safeguards will be in place. In particular, judges will require a high degree of specificity as to who will access the transmission. The regulations only permit transmission either to premises specifically designated by the Lord Chancellor for the purpose of enabling people not taking part in proceedings to follow them, or to individuals who have identified themselves to the court, usually including their full name and email address. Specific exemptions are also in place for hearings conducted in private.

In deciding whether to allow the transmission of proceedings, the courts will take into account a range of factors, including: the importance of open justice; the timing of the request for the transmission; the availability of the necessary technological capacity to facilitate the transmission; any impact on the quality of the evidence; and the safety and privacy rights of those involved in the proceedings. The courts will also consider “any issues which might arise if persons who are outside the United Kingdom are among those watching or listening to the transmission”, so that they will want to be made aware of any proposed ‘viewers’ outside the jurisdiction.

Practical steps

It is important for parties preparing for court hearings in England and Wales to remember that they should not assume that the court will give permission for any aspect of the hearing to take place virtually.  For most hearings, particularly those involving witness evidence, in-person attendance is regarded as the ‘gold standard’. However, in appropriate circumstances, the courts have shown themselves willing to be pragmatic and to permit some participants to take part virtually. The new regulations are an important part of that pragmatic approach.

Parties asking the court to permit the live streaming of proceedings should make that request early and be ready to assist the court in navigating and addressing any technological issues. They will also need to provide a full list of those whom they propose will access the live stream, including their locations.

It is vital to ensure that no-one is given access beyond those for whom permission has expressly been given. Breaches of this are taken very seriously by the courts. Some judges will require individuals who are to be given access to a live stream to sign an undertaking to the court that they understand and will comply with their obligations not to further broadcast, disseminate or record the proceedings.

Co-written by Anna Harley of Pinsent Masons.