I can’t see you, Clem Fandango

Video justice

In mid-March 2020, I was interviewed by Richard Crump of Law360 for an article about the potential impact of Covid-19 on court hearings. The courts were poised to move a significant proportion of hearings online, and I said: ‘It is very interesting, but also worrying, that we are suddenly going into a live experiment where there are concerns about the capacity of the courts and about fairness and open justice.

Since then, there has been an explosion in video hearings, and what has at times seemed a blizzard of practice notes and guidance – from the senior judiciary, from professional bodies[1]Including the Commercial Bar Association (COMBAR)’s excellent Guidance Note on Remote Hearings., and from others.[2]Such as the Inns of Court College of Advocacy’s Principles for Remote Advocacy.

Despite this abundance of advice, new issues continue to emerge.

In Navigator Equities Ltd v Deripaska [2020] EWHC 1798 (Comm), Andrew Baker J was hearing a contempt application remotely. The hearing took place over four days in June 2020, with live witness evidence. The judge said:[3]At paragraph 7.

I was slightly surprised to find when Mr Mill QC moved to call Ms Berard for her oral evidence that this was to be from the conference room at Blackstone Chambers from which Mr Mill was addressing me, his juniors also in attendance (or it may be they were elsewhere in Chambers). I had no reason to think that those in the room were not adopting proper social distancing precautions under current circumstances. My surprise lay not in that direction, but in the fact that the court had not been notified or asked to approve that arrangement, no attempt had been made to ensure there was a Bible available so that Ms Berard could be sworn as she would have preferred (but thankfully she was content to affirm instead), the words for her oath or affirmation were not to hand (although I did notice when drafting this judgment that they were tucked away at the end of the authorities volume of the electronic hearing bundle), the conference room setup meant that I could not have both Ms Berard and Mr Mill QC on screen, and no representative of Mr Deripaska was present.

After saying that he did not regard this as entirely satisfactory, the judge added:[4]At paragraph 9.

If a witness is to give evidence remotely, where he or she will be and who (if anyone) will be with them, and why, should be discussed between the parties in advance. That is always so, in my view, but especially it is so if the arrangement may be such that there could be interaction with the witness during their evidence that will not be visible to the court. Any arrangement other than that the witness will be on their own during their evidence should be approved by the court, in advance if possible, and parties should not assume that an arrangement will be approved just because (if it is) it is agreed between them. Sensible arrangements discussed and agreed in advance are likely to meet with approval if the court does not identify any difficulty of possible substance that the parties may have overlooked. But it must be for the court, not the parties, to control how it receives the evidence of witnesses called before it. I acknowledge that the parties were not asked by the court in advance to specify the witness arrangements here. They should have been, and that they were not is my responsibility, but equally parties should not wait to be asked.

Quasi-prosecutorial duties: contempt applications are not adversarial commercial litigation

The judgment also contains remarks of general importance about the quasi-prosecutorial duties of parties bringing contempt applications.[5]See paragraphs 141-145. This requires a different approach from the ‘modern style’ of dispute resolution which the judge said had developed ‘[i]n the working generation of 30 years or so’ during which he had been engaged in commercial dispute resolution in London and which he deprecated as overly hostile and aggressive. The judge said:[6]At paragraph 161.

In the working generation of 30 years or so during which I have been engaged in commercial dispute resolution in this jurisdiction, principally in this court and in London arbitrations, there has been a significant general increase in hostility and aggressiveness in the conduct of disputes. The taking of any and every point, good or bad, and other failures to display proper independence from the litigating client, is treated too often as if it were a normal or appropriate adjunct of well funded, hard fought, business disputes, particularly if there are issues of dishonesty involved. Where ultimately the court is asked only to decide the outcome of the business dispute, usually to be expressed in terms of a party or parties being told to pay money to another party or other parties, there may be nothing too unfair about that modern style, regrettable though I regard it nonetheless. But when the court is being asked by a private litigant to consider a charge of contempt of court against the other side, especially against an individual whose liberty the applicant therefore seeks to put at risk, a better standard of conduct is not merely desirable, it is essential to the fairness and the appearance of fairness of the process. Though I do not suppose that this is how the claimants’ legal team saw what they were doing, the appearance in this case was of claimants not seeking to put Mr Deripaska fairly on trial for contempt, but of claimants seeking to load the dice against him.

Alison Padfield QC

Notes   [ + ]

1. Including the Commercial Bar Association (COMBAR)’s excellent Guidance Note on Remote Hearings.
2. Such as the Inns of Court College of Advocacy’s Principles for Remote Advocacy.
3. At paragraph 7.
4. At paragraph 9.
5. See paragraphs 141-145.
6. At paragraph 161.