Urgent action needed to tackle cross-border hybrid hearing issues

It has recently become apparent that parties located outside of England and Wales are not legally permitted to watch hybrid hearings via video transmission. Action to empower courts to permit video and audio transmission of hybrid hearings to named participants outside the jurisdiction is now needed to enable the English courts to advance open justice principles and allow parties who may not be able to attend court in person to fully participate in the context of international proceedings.

The High Court's rapid adoption of new ways of working in light of the Covid-19 pandemic has been much admired. Commercial disputes have been successfully heard remotely through the pandemic lockdown. There are advantages to remote hearings for some clients, particularly international clients who already experienced the time, money and environmental impacts of travel to attend hearings even without Covid-19 restrictions, and some have even commented that they prefer this new way of working.

However, there are drawbacks to remote hearings, resulting in the courts moving to more of a 'hybrid' model as lockdown restrictions have eased. These drawbacks include connectivity issues for judges, advocates and other participants; the loss of immediacy between advocates and the judge, including difficulties in picking up on each other's non-verbal cues; and loss of the valuable opportunity that attending court can provide for discussions between legal teams, which can lead to more efficient dispute resolution.

Hybrid hearings are those in which some participants, often the judge and advocates, attend in person in the court room while others join remotely, usually by video conferencing software. Some cases may adopt a hybrid approach from start to finish, while in others the approach may only be suitable for certain stages of a hearing, such as submissions rather than evidence. Hearings with a hybrid element generally require some additional technical support, but that is readily available on the market and is rapidly developing.

The problem, for international disputes, is that it does not currently appear to be permissible, under the applicable statutory regime, for an individual to watch a video transmission or "broadcast" of a hearing from another jurisdiction. This seems to be the position even if that individual is a party to the litigation or another important stakeholder who, but for the Covid-19 outbreak, would have been present in court – and, potentially, even if they are a key witness.

Where does the prohibition on video transmission come from?

Under the 1925 Criminal Justice Act and 1981 Contempt of Court Act neither images, including film, nor audio recordings of court hearings may be broadcast, other than where limited exceptions provided for in primary legislation apply. Before the pandemic, such exceptions existed only for live streaming of Supreme Court and some Court of Appeal hearings on the internet for the public to view.

The 2020 Coronavirus Act introduced a further 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 introduced for fully audio hearings. As a result, fully remote hearings may be live streamed with the permission of the court, and a number of high profile commercial matters have already been live streamed on the internet under these powers.

However, the Coronavirus Act provisions do not apply to hybrid hearings. This was confirmed by the High Court in a decision handed down last month: Gubarev & anor. v Orbis Business Intelligence Ltd & anor.

By their nature, hybrid hearings will almost invariably 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 seems to be permissible within the rules where that transmission is to a location within the jurisdiction - certainly to another courtroom, as in the Gubarev case, but arguably even to lawyers' offices or a participant's home. The rationale appears to be that, under section 71(1) of the 1981 Senior Courts Act, the court can designate any place in England and Wales as in effect an extension of the court. However, this rationale does not assist once locations outside of England and Wales are involved.

A witness may, with the court's permission, give evidence via video link under CPR 32.3. This applies equally to hybrid hearings and witnesses located overseas as to other types of hearing and witnesses. It is not entirely clear from CPR part 32 or the accompanying practice direction whether an overseas witness giving evidence in this way may also be allowed to observe evidence given by other witnesses, with court permission. This is in doubt, as it was not listed as an exception to the general rule against broadcasting in the discussion in the Gubarev case.

Judges do not have power to override the statutory restrictions placed on the broadcasting of hearings, as previously confirmed by the court. As a result, unless the statutory framework provides an exception, simply applying to the court for permission for someone in another jurisdiction to watch the proceedings will not overcome the hurdle.

The Gubarev case

In the Gubarev case, a hybrid trial was set up with most of the 'remote' participants in a second courtroom in the court building. The hearing was transmitted from the first courtroom to the second via a Zoom link set up for this purpose. However, the Zoom link was also wrongly disseminated to various individuals located abroad including family members of the claimants and the claimants' US lawyers, who in turn passed it to a US journalist.

This was discovered by the judge when he noticed that one of the witnesses for whom he had granted permission to give evidence via video link was on one of the video screens and could hear the proceedings while not himself giving evidence. This caused the judge to make enquiries which led to the discovery that the Zoom link had been disseminated.

The dissemination of the link was in breach of an express court order. That court order had stated that unless the court's permission had been obtained there should be no transmission of any live audio or video recording of the hearing, nor any live feed of any transcript, to any location other than the second courtroom, and that in the case of an application for wider transmission the specific location within England and Wales to which transmission was sought would need to be identified.

The court, in its judgment on the conduct of the claimants' solicitors, emphasised that the limitations apply regardless of whether there is any express order in place. Here, the order had been made in order to make the position absolutely clear, as the judge had been concerned ahead of the trial by a comment in a witness statement from the claimants' solicitor that it would be useful for participants unable to attend in person due to UK quarantine restrictions to have access to a live recording.

The judge summarised the rules in this area in the order, including:

• 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;
• certain statutory exceptions have been made from the restrictions on live-streaming for the transmission of hearings. In summarising these, the judge made no mention of the provisions of the Coronavirus Act - these were irrelevant given that this was a hybrid, not fully remote, hearing;
• otherwise, live-streaming of video and audio is prohibited;
• live transcription is a different case, and may be allowed with the court's permission. Indeed, in this case a live transcript was transmitted to a representative of the defendants who was self-isolating in London.

Consequences and solutions

It therefore appears that, at present, a client or any other person in a jurisdiction outside England and Wales is not permitted to watch a hybrid hearing via video transmission. If the person in question is also a witness, they may give their evidence via video link provided that permission for this has been given, but there is considerable doubt as to whether they may watch the hearing over the same link before or after they give their evidence.

This leads to significant problems for parties who are prevented by Covid-19 restrictions from travelling to England for the hearing. They may need to give instructions to their legal team during the course of the hearing, which requires a clear understanding of the way the hearing is progressing. They may need to watch the evidence of the opposing side's witnesses in order to provide input to their legal team for the purposes of cross-examining those witnesses.

More fundamentally, the position prevents the party from following their own matter in the way they would in the courtroom under 'normal' circumstances. The English courts have a strong commitment to the principles of open justice and it would be an odd outcome if those principles did not also extend to parties to litigation being able to participate fully in proceedings which may affect their legal rights and obligations. It also potentially creates an uneven playing field if the opposing party is present in England and Wales and therefore able to watch a video transmission with permission, or even able to attend court in person.

The consequences of breaching the rules in this area are serious. Making unauthorised transmissions of court hearings is a criminal offence.

The same issues do not arise if a hearing is fully remote given the provision under the Coronavirus Act for the court to allow live-streaming of such hearings. As a result, parties who justifiably wish to follow a hearing from another jurisdiction, or who perhaps have key witnesses in the same position, may well be better pressing for a fully remote hearing.

There are some workarounds for hybrid hearings. For example, a participant could seek permission to follow the proceedings by way of access to a live transcript, which the court has the power to allow. It is also possible to combine some fully remote hearing days - for example, when witness evidence is being given – with some hybrid days for when it is perhaps less important that the client be able to watch the proceedings. However, these solutions do not adequately replicate the experience of attending a traditional hearing - something which runs contrary to the principle stated in the Gubarev case that hearings should be "conducted in a way that is as close as possible to the pre-pandemic norm".

It seems that this difficulty can only be resolved by the legislature. Any intervention is likely to require amendment of the Coronavirus Act provisions, or the introduction of other appropriate legislation, to empower the courts to permit video and audio transmission of hybrid hearings to named participants, including to participants outside the jurisdiction.

Co-written by Anna Harley of Pinsent Masons, the law firm behind Out-Law.