Gubarev & Anor v Orbis Business Intelligence Ltd & Anor

A court hearing remains a formal public process whether conducted remotely, face to face or in hybrid form. It is not lawful to livestream proceedings or permit remote access merely because the hearing is public. Transmission of sound, images or live text remains subject to the court’s control and any applicable statutory prohibitions or permissions.

Legal representatives must ensure that they, their clients and any third-party transcribers understand and obey orders governing transmission, recording and transcripts. Breaches of such orders, particularly breaches involving broadcasting or inadequate security, may justify referral to the Solicitors Regulation Authority or the Attorney General.

During the trial of a libel action, Warby J discovered that audio and video of the proceedings had been transmitted through Zoom to persons outside the jurisdiction without the court’s permission. The transmission breached an order restricting live audio, video and transcript feeds to an adjoining courtroom unless further permission was obtained.

The judge referred the conduct of the claimants’ solicitors and the associated transcriber to the Divisional Court under the Hamid jurisdiction. The central issues were the seriousness of the breaches, the responsibilities of solicitors supervising remote-hearing arrangements, and the appropriate regulatory response.

1. Disposition. The Court agreed with Warby J that the conduct involved serious failures to investigate, understand and comply with clear court orders, although it was not deliberate defiance. A copy of the judgment was directed to be sent to the Solicitors Regulation Authority; a further referral was unnecessary because the firm had already reported the matter.
2. A court hearing is a formal public process which must be conducted with respect for the court’s order, discipline and control. A remote or hybrid hearing must remain as close as possible to the pre-pandemic norm. Public access does not create a right for a party, lawyer or service provider to admit any remote participant.
3. Live transmission materially diminishes the court’s ability to control what occurs in the hearing and increases the risk of misuse and loss of public confidence. The court therefore retains control over the recording, transmission and external use of images, sound and transcripts. Live streaming is not permissible unless the court decides that it is lawful and appropriate.
4. The use of an outside transcriber or organisation to facilitate video or audio hearings is exceptional and requires the court’s permission. Solicitors responsible for the arrangements must ensure that they, their clients and any third-party provider receive and understand the relevant order, and must consult it whenever an issue concerning transmission or transcripts arises.
5. Breaches of express prohibitions in court orders, including broadcasting prohibitions and related security requirements, will be treated with the utmost seriousness. They may lead to referral to the Solicitors Regulation Authority or the Attorney General for consideration of contempt proceedings. The Court endorsed the warning given in R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070, substituting “orders” for “rules” and “procedural requirements”.

The judgment itself was not an appeal. Warby J referred the matter to the Divisional Court under the Hamid jurisdiction after discovering breaches during the trial.