Neutral Citation Number: [ 2020 ] EWHC 2167 (QB )

Case No: QB - 2017-002808

IN THE HIGH COURTOF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand , London , WC2A 2LL

Date : 06/08/2020

Before:

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

THE HONOURABLE MRS JUSTICE ANDREWS DBE

Between :

( 1) ALEKSEJGUBAREV
( ) WEBZILLA LIMITED
Claimants

(1) ORBIS BUSINESS INTELLIGENCE LIMITED

( 2 ) CHRISTOPHER STEELE Defendants

-and

In the matter of the Court's exercise of the Hamid jurisdiction

MrPatrick Lawrence QC instructedby and on behalf ofMcDermott Will and Emery LLP
and MsZiva Robertson

There was no other appearance or representation

Hearing date: 31 July 2020

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I direct that pursuantto CPR PD 39A 6.1no official shorthand note shallbetaken of this
Judgmentand that copies of this version as handed downmay be treatedas authentic.
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agreed, members of the press would have to access the hearing from the second
courtroom

8. The Memorandum went on to indicate that at present it was intended that only one
witness would be giving live evidence in the court room and the remaining four
witnesses would be giving their evidence via video link: one, a MrRoman Grinin,
from St Petersburg, another, Sir Andrew Wood, from the Channel Islands, and two
more from the Düsseldorf office ofMWE. In the event, the latter two witnesseswere
able to attend and give their evidence in court.

9. The Memorandum also recorded that the parties had discussed the use of the Opus 2
system for the electronic platform to be used at trial and that they were in the process
of obtaining a quotation for the cost, which the parties would share . They were also
ability to
going to investigate the practicalities relating to overseas witnesses and their
.
see the judge and the person questioningthem over the video link
. On 8
10. The trial was listed for a five-day hearing before Warby J starting on 20 July
an associate solicitor at
July, the Queen's Bench listing officer received an email from
. Itsaid :
MWE, expressed in peremptory and inappropriate terms
based on the
" should be grateful if you would consider the following requests
parties' requirementsfor the courtrooms

1. We require the courtroom to be in the Rolls building , and to be of sufficient

as the
as well
capacity to accommodate the judge, both legaland counsel teams
willconfirm as
key witnesses (weestimate there to be atleast 15 individuals but
soon as possible).

2 . Werequire a 2nd courtroom to bereserved for the press and public .

3. The trialwillbeconducted using the Opus 2 platform to accommodate for some
remotely by video. The
participants attending in person and others attending
Opus 2 technical engineers willrequire all-day access to the primary courtroom
a test run.
on Thursday 16 and Friday 17 July to setup the hardwareand conduct

4. Please note, it is Opus 2's strong preference that the courtrooms are in the Rolls
so
building that they can access the relevant connectivity to ensure
the Audio
Visual arrangements are properly working .

11
. The listingofficer sentan emailto the associate solicitor in response, explainingthat
in the Rolls
Court 73 had been set aside for the trial, and that none of the courts
during theweek of 20
building that could have accommodated thetrial were available
July 2020 .
the communication from
12 The email also included the comments of the judge about
the use of the
MWE. The judge described its wording as " unfortunate” , deprecated
parties to make " demands” in
word require and made it clear that it was not for the
trial is matter for the
such terms. As the judge pointed out, the management of the
, the limits on its resources ,
Court , which has to bear in mind the needs of other cases
judge went on to say this:
and the applicable substantive and procedural law . The
 Judgmer
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“ It is inappropriate to write ( for instance) that we require the courtroom to be in the
Rolls building... It is also inappropriate to assert in correspondence that “ the trial
will be conducted using the Opus 2 platform ... no direction has been given or
even sought to that effect. The Memorandum that accompanies the PTR Order shows
that the parties have agreed that this is appropriate . The Judge is not
But no order has been made. opposed to .

What the parties do “ require is the Court's permission for (

i) the use of an off
contract transcriber , and (ii) the provision of a live transcript feed
location. The parties will need to make a formal to any external
application for the permissions
identified above. The Court will also need to know exactly
what is proposed by way of
any transmission from the main courtroom to any
other location: is the proposal to
providetext only, or audio and or video , and in any event to which
is it proposed to transmit? external locations

In addition , although the Court

may allow evidence to be adduced from
through video links (CPR 32.3), there witnesses
is no absolute right to adduce evidence
.
way Again , I am amenable , but an in this
application needs to be made. PD 32 para
and Annex 3 provide guidance on 29.1
should bemade. the use of video conferencing , to
which reference

If applications for these further

directions are
without a hearing. Otherwise, there may needagreed, I will deal with them on paper,
to be a further PTR which could
held on Tuesday or Wednesday of next be
week.”
13
Following these appropriate admonitions , and the
was required MWE, through the identification by the judge of what
associate solicitor, issued an
supported by evidence from her on 10 application notice
July 2020 on behalf of the claimants ,
permission from the Court, amongst other seeking
matters: (i) for the parties to use
a transcriber; ( ii) for Opus 2 to Opus 2 as
provide a live audio and video feed of the trial
adjacent courtroom , subject to such to the
courtroom being available ; ( iii) for
have access to the courtroom in the Opus 2 to
week of 13 July 2020 to conduct
connectivity testing before the urgent
to undertake a test run of the commencement of the trial , and to allow for all parties
facilities , and ( iv) for Mr Grinin and Sir
to give their evidence by video link Andrew Wood
pursuant to CPR PD 32 para 29.1 and
The claimants were stated to Annex 3 .
be the party responsible for
videoconferencing arranging the

14. In the evidence section of the

application notice, the associate solicitor
claimants would make all necessary stated that the
enquiries with Opus 2 about the
videoconferencingfacilities (VCF) and inform the logistics of the
the claimants would also ensure Court ofthe outcome. She said that
that the VCF session was as close as
usualpractice in a trial court where possible to the
evidence is taken in open court. Her
continued as follows: evidencethen

The parties further discussed the use of

the hybrid nature of the trial. Itwas Opus 2 as a platform to accommodate
agreed that such use of the platform
appropriate. In particular, it wasagreed that it would be
partiesto have a real- time transcription of would be useful for the judge and the
visual recording, that could be transmitted the proceedings, including a live audio
the trial in person due to the U.K.'s to participants that were unable to
quarantine restrictions or unable to be attend
in the
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primary courtroom due to social distancing requirements. One order made by the
judge at the PTR was that there should be a second courtroom for press and the
public." [ Our emphasis) .

15 A draft consent order was annexed to the application, to which it was said the
defendants had agreed. So far as the proposed live audio and video transcript feed of
the trialwas concerned, the draft consentordermirrored the application, and confined
the feed proposed to the second courtroom subject to such a courtroom being
available

16 . We have before us a witness statement from Ms Lynsey McIntyre , the partner in

the
MWE responsible for the preparation of the claim for trial. She states that
associate solicitor recognised that her email to the listing office was unfortunately
worded and " regretted that” following discussions with Ms McIntyre which took
place shortly after receipt of the judge's comments . However, the application itself
thePTR and
merely said that: “ the parties regret that these orders were not sought at
form sought on the
respectfully request that the Court grants the orders in the
criticism of the high
papers . Nothingwas said to acknowledge or accept the judge's
the court how the
handed manner in which the associate solicitor had sought to tell
trial was going to beconducted .

The Order of 14 July 2020

in the evidence in support

17 Warby J was naturally concernedby the referencemade
the live audio -visualrecording to
the application to the possibility of transmitting
to the United Kingdom's
participantsthat were unable to attend the trialin person due
, to the possibility of such
quarantine restrictions(and thus, by necessary implication
precaution of
transmission outside the jurisdiction). He therefore took the sensible
would not be permitted . This is
spelling outin the clearestpossible language that this
have do, as legal
not something which a judge would ordinarily expect to
be familiar with the legal
professionals who use the courts are expected to
are not, to make
requirements concerning the broadcastingofproceedings, and ifthey
are.
thenecessaryenquiries to find outwhat they

18 . In the event, the Ordermade by Warby J on 14 July 2020 contained , in addition to the
terms of the draft consent order, some additional directions in three further
paragraphs. These read as follows:

“ 7. The second courtroom identified in paragraph 1( ) of the PTR Order shall be

deemed to be an extension ofthe principalcourtroom .

8. (For the avoidance of doubt) unless the Court so directs, there shall be no
transmission of any live audio or video recording, nor any live feed of any transcript
of the trial or any part of it, to any location other than the second courtroom
identified in paragraph 1( ) of the PTR order.
any other location any
9. Any person wishing to seek permission to transmit to
of any live
audio and / or video recording , and any application for the transmission
of it mustmake a
transcript or other live text based report or of the trial or any part
of the reasons for
written application supported by written evidence or an explanation
for transmission of a video or
seeking permission and, in the case of an application
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audio recording identifying the specific location in England and Wales to which it is
sought to transmit.

19.
Those paragraphs had been made of the Court's own motion without a hearing and
without invitingrepresentations. The Order therefore recited, correctly, that pursuant
to CPR 23.8 ( c) any party affected had the rightto apply to vary or discharge those
paragraphs. It directed that any such application must bemade in writing by no later
than 4 p.m. on Thursday, 16 July 2020, on notice to all other parties. No such
application was made.

20 .
The judge took the trouble to explain why he was making those additional directions.
Under the heading “ Reasons” he said that the application and supporting evidence
addressed a number of concerns he had already expressed to the parties via Queen's
Bench listing about the outcome of the pre- trial review , namely an Order and a related
Memorandum , the latter of which dealt with matters that are under the Court's control
but did not have the status of an order . He then continued :

1. ...Arrangements such as transcription and (in particular) live feeds are not
matters to be dealt with by agreement between the parties, without the Court's
express permission. I am content to makethe orders sought...

2. I have added paragraphs 7 to 9 in view of the evidence that

itwas agreed that it would be usefulfor the judge and the parties to have a real
time transcription of the proceedings, including a live audio-visual recording,
that could be transmitted to participants that were unable to attend the trial in
person due to the U.K.'s quarantine restrictions...
and the applicable law .

3. 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 . R (Spurrier ) v Sec

of State for Transport [ 2019 EWHC 528 ( Admin ) 2019 2016 ; Criminal
Justice Act 1925, s.25 Contempt of Court Act 1981, s.9; s.71 (1) Senior Courts
Act 1981; CPR 2.7 ; Constitutional Reform Act 2005 s.47: Crime and Courts Act
2013, ss 31, 32 and orders made thereunder .

4. Live text-based reporting, which includes live transcription, stands in a different

category. It is not prohibited by statute, but regulated in the exercise of the
Court's inherent jurisdiction, in the interests of the administration of justice.
Journalists may live tweet. Others may report in this way with the court's
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course to take in the event that any person who could not be present in either of the
courtrooms wished to have a live transcript or video or audio link of the trial, that
should have dispelled it

26 .
Whenever a judge gives permission for a transcript or report from a recording made
other than by the Court itself to be prepared, a form must be completed and lodged
with the Court. The first two sections must be completed by the applicant and the
approved transcription supplier respectively, and the third by the judge . A copy of the
form will be retained by the judge's clerk . The part of the form completed
by MWE
stated that the details of any third party on whose behalf the
transcript is to be
prepared or any third party to whom the transcript will be provided were “ all involved
parties and supporting counsel teams” . The section for completion by
the
transcription provider states that notwithstanding any description of the
provided , they may not intended use

i make publicly available either by itself or as part ofany other

material
)

ii) provideto a third party not specified aboveor

iii) otherwise publish whether or notfor payment ofa fee
the whole or any partofthe transcript.
27. The transcriber must also agree to comply
with the information security requirements
set out in annex 1. Section 2 of that annex
includes a requirementthat transcription
suppliers shall take reasonable steps in all cases
to enable secure transmission,
including checking that recipient email addresses are
accurate and genuine and
requesting confirmation of receipt, and usingread receipts
stated to be mandatory. as standard. Passwords are

28 . Ms Robertson had overall responsibility

for the conduct of the case, but was not
closely involved in it after her initial involvement
in February 2017 , and leftthe day
to-day handling of the matter to Ms McIntyre.
Nevertheless, we would have expected
her to obtain periodic updates from Ms McIntyre
or the associate solicitor on any
matters of significance, including the arrangements made
for the trial. In her first
witness statement, MsRobertson says that she had seen a
copy of the Order dated 14
July 2020 which provided that the hearing should
not be streamed remotely, but she
did not forward it to her clients .

29. On 15 July 2020 Opus 2 were asked by the parties to facilitate a

feed into the second
courtroom , Court72. This Opus 2 did, using theZoom platform .
30.
On 17 July 2020, following written correspondence
with MWE, Opus 2 received a
telephone callfrom the associate solicitor who requested that
the samelink for the
feed be sent to their attendee list, which had been sent to
Opus2 on 10 July via email.
That list comprisedMsRobertson, MsMcIntyre, the
associate solicitor and three of
their clients, Mr Gubarev ( the first claimant), Mr Nikolay
Wadhera. Dvas and Ms Justine

31.
According to a letter written by Ms Sarah Mill, the Global Head of In Court
of Opus 2 to the judge on 28 July 2020 , itwas their understanding services
thatthis link was to
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be used and therefore the feed accessed , only in the hearing room ( Court 72). This
was because social distancing requirements meant those seated in the public gallery
would not have access to a video screen . The link was provided so that they would be
able to see remote participants as and when necessary . The same link was also
circulated separately to the 2 remote witnesses (which it should not have been ) and to
members of the Opus 2 team who were involved in providing and overseeing their
services . Opus 2 have confirmed that they were not instructed to and did not send the
link to any RPC attendees at any point during the proceedings .

32
MsMcIntyre says that she met counsel and the clients at a pre- trial conference at
MWE'soffices on the afternoon of Friday 17 July where a number of matters were
discussed, but not the Order of 14 July. At that point it was her understanding that
only those giving evidence by video link could be permitted to join the hearing
remotely as active participants, in accordance with the judge's Order. The only
exception to that was the representativeof the defendants' insurerswho had been
expressly permitted by the judge to receive transmissionof the live transcriptvia the
Opus2 externalwebsite. She saysthat any question ofseeking permissionfor external
participants to have access in this way had not been raised by her clients with her
either at the pre-trial conference or previously.

33. On the evening of Friday 17 July , MsRobertson received the Zoom invite from Opus
2 for the followingMonday, 20 July, which was the first day of trial. She says that she
was not sure what its purpose was. MsMcIntyre also received the same link and
immediately emailed the associate solicitor to find outwhat it related to ( confusingly,
the Zoom invite described the invitation as being to a " webinar and why it had a
start timeof 10.00 a.m.ratherthan 10.30 a.m.The associate solicitor explainedthatin
consequence of the discussions at the pre- trial conference, she had made enquiries
with Opus 2 to see if there was a way in which the video evidence of the remote
witnesses could be viewed on laptops within the court room by those in the public
gallery. That fits with the explanationthatwas given to Opus2 .

34. Ms McIntyre says that although she received various text and email messages from
the clients over the weekend of 18 to 19 July concerning the trial, no questions were
raised with her about the Zoom links or external participants. She also says that she
did not review Warby Order of 14 July during the course of thatweekend. She was
the partner in MWE with responsibility for the day to day running of the trial which
was due to start the following Monday. We find it surprising that she did not review
the Order as it bore directly on how those proceedings were to be conducted , and in
order to make sure that the arrangements for which she was responsible fully
complied with its terms.

35 . On the evening of Sunday 19 July 2020 , Ms Robertson received a textmessage from

Mr Dvas, who asked her “ is the link public ?” In her first witness statement for the
hearing before us, MsRobertson explained that she interpreted this as a query as to
whether the Zoom invite was an open invite that could be sent out to other parties,
such as the claimants' US attorneys, who had planned to attend trial but could not
travel to the United Kingdom because of Covid 19. MsRobertson responded I need
to check . Where did you get this from ?” MrDvas sent her the address Robertson
responded “ - our trialmanagementplatform . It is not a public link as far
as I'm aware. The judge has notauthorised live streaming of the case other than to the
D's insurance representative. ” Mr Dvas's full response is not included in the
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that they should have been transmitted and apparently transmitted to places which
were not yet authorised .

40.
Warby J rose for a short time to enable enquiries to be made as to how this state of
affairs had come about. When the Court reconvened, the judge said he should like to
know who it was proposed should be receiving a live feed of the proceedings. He
quoted the express prohibition in his Order of 14 July. He observed that it could not
have been clearer and that at the momenthe failed to understand how that was not
implemented

41. Mr Caldecott QC then gave an explanation and an apology . He said that Opus 2 had
sentout a Zoom link to the court proceedings and that Ms Robertson correctly said on
Sunday that there had been no authority for live streaming, but that:

" she what, frankly, she accepts is a slightmemory fade on Monday, when she
told someofmy clients that itwasallright to use the Zoom feed. Sheknows that that
was wrong, she checked she gave the right advice on Sunday evening and she's just
very apologetic and embarrassed about it and I can say no more than that, but it's
very unfortunatethat ithappened.

The judge said that he was grateful for the explanation and he accepted the apology ,
but that he would like to know who it had been streamed to if that were possible . The
defendants ' counsel MrMillar QC said that they would also like to know who it had
been streamed to. The judge then stated that if there was any live streaming going on
it must come to an end , and it must not resume until someone had made an application
for it to continue .

42. That evening, Ms Robertson sent an email to the judge's clerk apologising for what
had happened . She said this :

" A ] Mr Caldecott QC informed his Lordship earlier this afternoon, havingadvised

the claimants on Sunday not to disseminate the did the Zoom link they received from
Opus, I gained the impression on Monday told them – that they would be able
to do so. I cannot now recall how or from whom I gained that impression, but I
entirely accept that it was wrong. I did not check the position with the Court or
Counsel as I should have done. As Mr Caldecott QC told his Lordship, I am
embarrassed and apologise unreservedly to thecourt. I should make it clear that at
all times my clients were simply following my advice. UntilI informed them wrongly
thatthey were at liberty to disseminate the link they did notdo so. " [Our emphasis .

43. MsRobertson then set out a list of 7 individuals directly connected to the claimants,
to whom the Zoom link had been sent. These included Mr Gubarev's wife and
daughter in Cyprus, Mr Dvas's mother in Russia and the claimants US attorneys in
the USA. She said that she was told that the link was not forwarded to third parties by
those , who had individually watched only part of the proceedings ( if at all). It
has since transpired that shewas misinformed aboutthat.

44 .
MsMcIntyre sent an email to the judge's clerk later that evening enclosing an email
from Opus 2 addressing the ongoing technical difficulties . She said that because Opus
2 had said a reliable video stream to court 72 could not be guaranteed for the rest of
the trial due to connectivity issues it appears that the most reliable way to ensure
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able to tell her client
understood it, because she was
Order. MsRobertson obviously to be disseminated even though it
was not
the Zoom link
on the Sunday night that protection. In that context
, we note with
link with no security
appeared to be a public on which permission had
concern that this was a breach of the terms -court service
considerable court proceedings by a non
the transcription of
been granted for
provider.

The solicitors' explanations

that on the morning of the first day

55 .
In her first witness statement, MsRobertson says
or should not be in courtroom 73. This
of the hearing it was not clear who should
review by consent. Ms
however was clear from the order made at the pre- trial
that the press and
Robertson ought to have been familiarwith its terms, which were
apart from
the publicwere to haveaccess to the proceedings from court 72; and that
reasons connected
the judge, the Opus 2 technicians and necessary court staff, for
with social distancingand safety, only the parties andtheir lawyers and anywitnesses
giving live evidence were to be allowed into court 73.

56 .
MsRobertson says that at one point she overheard a discussion about a Zoom link to
court 72. She was reminded of what Mr Dvas had said to her the previous night about
the Zoom link being unsecure and she asked MsMcIntyre whether the Zoom link was
streamingthe trial and whether itwas unsecure . MsMcIntyre said that she thought so ,
andMsRobertson asked herwhether it would be “ OK ” for the clients ' US team to use
it too. MsRobertson thought thatMsMcIntyre said yes, but on reflection she believes
they may have been at cross purposes. Rather than stopping to think, or to ask
whether the Order of 14 July had been varied or generally inquiring into the position,
she then told MrDvas that it appeared to be send the link to the clients ' US
lawyers.

57 According to Ms McIntyre's evidence however, Ms Robertson was having a

discussion with the associate solicitor about the transmission problems Opus 2 was
experiencing and the Zoom link that had been circulated and she briefly joined the
conversation , for no more than a minute or so. Whilst she could not recall precisely
what was said in that brief conversation , she remembered making a comment to the
effect that it was a public hearing and that members of the public have the right to
attend it. She could not recall Ms Robertson asking her a question about the
circulation of the Zoom link , but she accepted that she may have done so and that
there may have been a misunderstanding.

58. Later on in her first witness statement Ms Robertson says that on reflection, she
believedthat because an unsecured Zoom link had been set up and was being used in
the court room nextdoor, she took it to follow that it was permissible for the link to
beused remotely by people such as the US lawyers, who would havebeen in the court
if itwere not for the Covid 19 restrictions. She said shewas influencedby the fact that
the Zoom link had been sent to various people by Opus 2 in what
seemed to be a
routine way

59. In hersecond witness statementMsRobertson says that she had not read the Order of
14 July closely and did notat that time fully apprehend the generalprohibition
on the
live streaming of court proceedings. Had she apprehended it she would nothave
acted
as she did. When she heard aboutthe live streaming of
the proceedings by Zoom link
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clients and any third

63. It is the solicitors' responsibility to make sure that they and their
are fully familiar with the contents
party transcribers they are responsible for instructing
or transmission of proceedings or the provision of
of any order relating to the relaying
have copies and refer to them
transcripts and the like, and to make sure that they
. It is importantnonetheless to
whenever any issue of this nature arises in the future
emphasise that all participants in legalproceedings, includinglegal representatives ,
parties, and those involved at an ancillary level
, includingcourt transcribers, understand
thatanybreachesofexpress prohibitionsin court orders, and in particular, breaches ofthe
legal prohibitions on broadcastingand of related protective measures such as security
requirements, willbe treated with the utmost seriousness. They may result in the papers
beingsent to the SolicitorsRegulation Authority ( SRA ) or to AttorneyGeneralwith a
view to considering whether proceedings should be brought for contempt of court, a
coursewhich Warby J actively contemplated in this case.

64 . Sir John Thomas said in Hamid at para 11:

" The court intends to take the most vigorous action against any legal representatives
who fail to comply with its rules. If people persist in failing to follow the procedural
requirements, they must realise thatthis court willnot hesitate to refer those concerned to
the SolicitorsRegulation Authority .

That is a warning for the future. We hope it will be unnecessary to have to have any
further hearings of this kind or to refer anyone to the Solicitors Regulation Authority , but
we will not hesitate to do so where there is a failure to comply with the court's
requirements .

We endorse those sentiments, substituting orders” for “ rules and procedural

requirements” . We likewise hope and expect that it will be unnecessary to have any
further hearings of the kind we haveheld in this case. This judgment in this case , like
that in Hamid, is intended to serve as a warning for the future, and as a mark of the
Court's concern .

65 MWE has already referred the matter to the SRA it is unnecessary for us to do so .
We will nonetheless direct that a copy of this judgment is sent to the SRA so that this
Court's views of the seriousness of the breaches in this case can bemade known to it.