CPR 39.9(1) provides that at any hearing, whether in the High Court or county court, the proceedings will be tape-recorded or digitally recorded unless the judge directs otherwise. Litigants wishing to use their own recording equipment and services must obtain the court’s prior permission and a failure to do so will constitute a contempt of court under section 9 of the Contempt of Court Act 1981 and offences under sections 85B and 85C of the Courts Act 2003 (Gubarev & Anr v Orbis Business Intelligence Ltd & Anr  EWHC 2167 (QB)). In the recent decision of JR & B Farming Ltd v Hewitt  EWHC 1704 (Comm), the court provided important guidance on the procedure to be followed where litigants wish to use live-time transcription services in relation to court hearings (i.e. transcription other than from the court’s own recording and which is necessarily after the hearing).
In brief, the case involved allegations of negligence against the first defendant in failing to preserve the security of tenure of the claimant as a tenant under the Agricultural Holdings Act 1986 by failing to take adequate steps in relation to service of a counter notice under that act. The first defendant was a solicitor who at the relevant time acted as a consultant to a firm of accountants, the third party. Since the hearing of the pre-trial review (PTR), the third party was also joined as second defendant.
At the PTR, it became clear to the judge that the solicitors for the third party had engaged transcribers to provide a transcript of the hearing. The transcript was accordingly not being made from the court’s recording of the hearing by an official transcriber. Instead, the transcript was prepared directly from the hearing which involved a transcriber being streamed the hearing and also taking a recording of it (i.e it was a live-time transcription). However, no order had been sought from the court for permission for such transcription and the court had only been provided with the electronic details of the transcriber as being one of the participants at the PTR minutes before 5pm the day before the hearing. Although the judge gave permission for the transcription to continue, he dealt with the issue of the failure to obtain the court’s prior permission and the procedure to be followed in the immediate case.
The judge observed that it was clear that contemporaneous recording of proceedings (other than by the court itself) is prohibited, whether proceedings are face-to-face, hybrid or fully remote, without the court’s prior permission. He emphasised that there was no general exception for recordings taken for the purposes of obtaining a real-time transcript because the court will wish to know and to regulate to whom transcripts are being circulated during the trial, and it should know who is present on the remote platform and to whom the proceedings are being streamed; therefore, prior permission of the court was necessary. Where permission is granted, the court will expect copies of any court order and/or its effect to be explained to the client, and for a copy of the order to be provided to the transcribers (Gubarev).
The judge held that if permission is given, Form EX 107 OFC (Off-Framework – user permissions form) must be completed and filed with the court. The first two sections of that form must be completed by the applicant and the approved transcription supplier respectively, and the third by the judge. A copy of the form is retained by the judge’s clerk. The part of the form completed by the applicant must provide details of any third party on whose behalf the transcript is to be prepared and any third party to whom the transcript will be provided. The section for completion by the transcription provider states that notwithstanding any description of the intended use provided, they may not: (i) make publicly available either by itself or as part of any other material; (ii) provide to a third party not specified above; or (iii) otherwise publish whether or not for payment of a fee the whole or any part of the transcript. The transcriber must also agree to comply with the information security requirements set out in annex 1. Section 2 of that annex includes a requirement that 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 using read receipts as standard. Passwords are stated to be mandatory.
The decision in JR & B Farming is a valuable reminder of the need to obtain the court’s prior permission and to carefully follow the correct procedure if a party wishes to use its own recording and transcription equipment and services; a failure to do this will, as explained by the judge in JR & B Farming and Gubarev, result in extremely serious consequences. As well as completing and filing the necessary form, the courts will also expect practitioners to have provided their client with a copy of an order giving permission (or at least explained its effect to their client) and provided a copy to the party providing transcription services.
Masood Ahmed is an associate professor at the University of Leicester and member of the Civil Procedure Rule Committee