Out-Law Analysis | 26 Nov 2020 | 3:00 pm | 4 min. read
A recent ruling enabling foreign parties to UK litigation to participate in 'fully video' court hearings is welcome in the context of continued Covid-19 restrictions, but it remains unclear whether parties whose hearings are taking place on a 'hybrid' basis may also attend from abroad.
'Fully remote' hearings have been common since the outbreak of the pandemic in the UK and involve all participants in the hearing attending remotely. 'Hybrid' hearings initially began to take place as lockdown restrictions eased, and involve some participants attending court in person while others attend remotely.
The decision of Mr Justice Kerr in the recent case of Huber & Anor v X-Yachts (GB) Limited & Anor indicates that the High Court in England and Wales is alive to the issues faced by cross-jurisdictional litigants. It confirms that, in certain circumstances, such as where participants are unable to travel or it would be unreasonable for them to do so, it will be willing to permit remote attendance, including from abroad, with appropriate safeguards in place.
Importantly, the judge recognised that litigation before the courts of England and Wales frequently has an international dimension and considered that UK parliament, in passing the Coronavirus Act, must be taken to have had that fact in mind
The case concerns a claim arising from alleged defects with a yacht supplied by X-Yachts to a David Huber and his wife. The dispute centres on the terms of the contract for the sale of the yacht, the transfer of ownership and whether the yacht was defective so as to entitle Huber and his wife to validly reject the product and any subsequent damages. The claim is in excess of €500,000.
The trial is due to take place on a 'fully remote' basis via video over six days starting on 30 November 2020, while England remains under national lockdown restrictions. Huber and his wife are located in Mallorca, Spain, and one of them is in an 'at-risk' category, being over 60 years old. Some of the defendants or their associated companies are located in Denmark and Ireland, and some of the witnesses they wish to call upon are based in Denmark.
There was no issue about whether witnesses were able to attend the trial remotely from outside the jurisdiction while actually giving their evidence. However, X-Yachts submitted that the court did not have the power to permit anyone outside the jurisdiction, other than a witness while giving evidence, to attend and observe the remote hearing.
The judge rejected this argument and confirmed that, under provisions of the Coronavirus Act 2020 introduced earlier this year to allow courts to permit the broadcast of video proceedings, he had the power to authorise the attendance of 14 named individuals in Ireland and Denmark.
In doing so, he held that there were good reasons to "…not interpret the silence in the statutory provisions on the issue … as an implicit prohibition against permitting remote attendance from outside England and Wales".
Those reasons included the backdrop against which the 2020 Act was enacted and the policy underlying it, namely to keep courts running as smoothly as possible by means of technology.
Importantly, the judge also recognised that litigation before the courts of England and Wales frequently has an international dimension and considered that UK parliament, in passing the Coronavirus Act, must be taken to have had that fact in mind. The judge considered that a narrow construction of the legislation "could create unfairness and an inequality of arms". In this case, such an interpretation would have precluded Huber and his wife from participating in the hearing of their own case. Therefore, the judge was willing to permit some remote attendance from abroad "on a cautious basis".
The judge's orders provided that certain named attendees, including the parties and representatives, could attend the full trial remotely on the basis of the provision of a signed undertaking to be provided by email to the judge's clerk before the start of the hearing. Additionally, the judge required the provision of a list of attendees that the parties wish to attend the hearing which identifies each proposed attendee, gives details of the capacity in which they will attend, the address from which they will do so, and their email and telephone contact details.
The judge's orders also make clear that the parties are responsible for ensuring that any person providing technical assistance to an individual authorised by the orders to attend the trial is made aware of the content of the order and that they must not facilitate remote attendance beyond the scope of the order.
It is to be commended that the courts recognise the need for access to justice, including for overseas parties to proceedings in the UK, by taking a pragmatic approach to enable participants outside the jurisdiction to fully participate in hearings. However, it is important for those parties to note the strict requirements which are likely to be imposed on them and their legal and technical team for the hearing, and the importance of not allowing anyone to attend a remote hearing other than those named individuals for which the court has expressly given permission. Failing to comply with such requirements, such as by forwarding a link to a remote hearing to others, even within the same organisation, may amount to a contempt of court.
In addition, the position regarding attendance at 'hybrid' hearings by individuals located in other jurisdictions remains uncertain. We previously considered the effect of the current statutory provisions relating to the broadcasting of hybrid hearings, and discussed the need for intervention by the UK legislature to enable parties to actively participate in these types of hearings during the current pandemic and beyond. Those issues did not arise in the Huber case as it relates to a hearing to be conducted on a wholly remote basis.
There are suggestions in the Huber judgment that the judge's view is that in the case of hybrid hearings, all participants must be in England and Wales. He said that, in a hybrid hearing, "the court hearing proceeds outwards from a physical location", and seemed to accept that in that situation the applicable analysis is that "the court would be sitting in 'multiple locations' and all of them must therefore be within England and Wales". He added that for "remote attendance from within England and Wales in the case of a hybrid hearing … the remote location from which the person attends is designated as part of the court".
This remains an unsatisfactory position for the conduct of hearings. It potentially prevents proper participation in hybrid hearings by parties located abroad, which is contrary to the same principles of fairness and access to justice as were emphasised by the judge in this case. Our understanding is that, in practice, some judges are taking the view that they are willing to deem such foreign locations to be extensions of the court, and so allow attendance from those locations, which is a pragmatic and welcome approach. However, we hope that this will be addressed in legislation, or at least a judgment, soon, in order to provide better guidance and clarity to litigants based outside of the UK.
Co-written by Anna Harley of Pinsent Masons.
23 Sep 2020