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Claim No.

: IL-2019-000110
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY LIST
The Hon. Mr Justice Warby (“the Judge”)
Monday 4 January 2021
BETWEEN:
HRH THE DUCHESS OF SUSSEX
Claimant
and

ASSOCIATED NEWSPAPERS LIMITED


Defendant

REMOTE HEARING DIRECTIONS ORDER

Particular attention is drawn to paragraph 17 of this Order


below and paragraphs 5 and 6 of the Reasons

UPON the claimant’s application for summary judgment (“the Application”)


having been listed for a hearing before the Judge (“the Hearing”) on Tuesday
19 and Wednesday 20 January 2021

AND UPON the Judge

(1) taking notice of the current state of the COVID 19 (Coronavirus) pandemic
and the measures being taken in response, and

(2) proceeding on the assumption that at the time of the Hearing the regulations
that apply in London will be no less severe than those of the Tier 4 restrictions
currently in force

OF THE COURT’S OWN INITIATIVE

AND WITHOUT A HEARING pursuant to CPR 23.8(c)

IT IS ORDERED THAT:-

Remote hearing

1. The Hearing shall be conducted wholly as video proceedings.


Provision of documents for the Hearing

2. The parties shall co-operate in ensuring that all documents necessary for the
Court to identify and resolve the Application are made available in an
accessible form complying with the current guidance on e-Bundles (for which
see Appendix A to this Order) in good time before the Hearing, and in any
event by no later than 10.30am on Thursday 14 January 2021.

3. By 10.30am on Thursday 14 January 2021 Skeleton Arguments, which should


not exceed 25 pages in length, must be prepared, exchanged, and sent by
email to Chancery Listing with copy to Queen’s Bench Listing (together,
“Listing”) and the Judge’s clerk using the contact details in Appendix B to this
Order.

4. By 4.00pm on Friday 15 January 2021 the parties must agree prepare and
provide to the Judge’s clerk and all other representatives an indexed and
paginated bundle of authorities for the hearing. The bundle should be
electronic and searchable.

Remote attendance by parties and representatives

5. By no later than 4:00pm on Friday 15 January 2021, each party must notify
Listing by email of the identity of each person whom that party wishes to
attend the Hearing for or on behalf of that party, the capacity in which they
will attend, and their email and telephone contact details. The contact details
to be used are at Appendix B and a form to be used for this purpose is at
Appendix C to this Order.

6. If the Court is satisfied that the requirements of paragraph 5 have been met
in relation to any person, it will facilitate remote attendance by that person.

7. Each party is required to provide a copy of this Order to every person


attending the hearing remotely on behalf of that party, drawing attention to
the provisions of paragraph 17 below.

Open justice: remote attendance by reporters and members of the public

8. For the purpose of enabling members of the public to see and hear the
proceedings and to ensure that the Hearing is of an open and public character
it is directed that

(1) the Court shall give notice to the media and the public that the hearing is
taking place remotely, and provide a contact address at which to obtain
details of how to attend remotely.

(2) (pursuant to s 85A of the Courts Act 2003) the proceedings shall be
broadcast to the following: such persons as have been identified and have
been provided with the necessary access details pursuant to paragraph 5
above, paragraph 9 below, or arrangements made for reporters by Her
Majesty’s Courts and Tribunal Service.
9. A member of the public who wishes to attend the hearing remotely must
notify Listing by email of their identity, the capacity in which they wish to
attend, and their email and telephone details, using the contact details at
Appendix B and the form at Appendix C to this Order. Notice should be given
by no later than 4:00pm on Friday 15 January 2021.

10. If the Court is satisfied that the requirements of paragraph 9 have been met
in relation to any person, it will make reasonable efforts to facilitate remote
attendance by that person, by sending an email invitation to attend the
hearing. However, (1) there is no right to attend a remote hearing; (2) failure
to give timely notice of a wish to attend may mean that attendance cannot
be facilitated; (3) the provisions of paragraph 14 below must be noted, and
latecomers may not be admitted; (4) access cannot in any event be
guaranteed; the needs of other litigants, the limits on resources and the need
to monitor the identities of those who view the proceedings may mean that
the Court is not able to meet demand.

11. Any person who has notified the Court in accordance with paragraph 9 above
but not received an invitation to the hearing by 3:00pm on Monday 18 January
2020 should contact the Judge’s clerk or Listing.

12. In accordance with PD51Y para 3, if any media representative is able to


access the proceedings remotely while they are taking place they will be
public proceedings.

The Hearing

13. Unless otherwise ordered or directed, the hearing shall be conducted via
Microsoft Teams.

14. The hearing will commence at 10:30am on 19 January 2021. However, all
attendees are obliged to attempt to sign in shortly after 9:30am, so that any
issues with the connection can be addressed before the hearing is due to
begin. Issues should be raised with Listing or the Judge’s clerk.

Formalities

15. Although the Hearing is being conducted remotely, the Hearing remains a
court hearing. The usual rules and formalities continue to apply to all
participants and observers. Anyone not speaking at the time should have
their video off and audio muted.

Recording and transmission

16. Pursuant to s 85A of the Courts Act 2003, the Hearing will be recorded by the
Court. Attention is drawn to the provisions of CPR 39.9(3) regarding access
to transcripts of hearings.

17. It is prohibited, and it may amount to a contempt of court, for any person to
make, attempt to make, or transmit or attempt to transmit any unauthorised
visual or audio record of these proceedings or of an image or sound made or
transmitted during remote proceedings. Attention is drawn to s 85B and 85C
of the Courts Act 2003 (as inserted by the Coronavirus Act 2020).

Live text-based communications from court

18. Representatives of the media or legal commentators may provide live text-
based reporting in accordance with paragraph 10 of the Lord Chief Justice’s
“Practice Guidance: the use of live text-based forms of communication
(including Twitter) from court for the purposes of fair and accurate reporting”
dated 14 December 2011 (“the Practice Guidance”).

19. Any other person wishing to use live text-based communications during the
Hearing must apply for permission: see paragraph 9 of the Practice Guidance.

Liberty to apply

20. In addition to the rights conferred by CPR 2.11 and those referred to in the
Note below, both parties and any person affected by this Order have liberty
to apply in relation to this order. Any such application must be in writing to
Listing but may be exercised informally, without the need for an application
notice. Any such communication must be copied to all parties.

NOTE: This Order has been made of the Court’s own initiative, without
a hearing and without representations from the parties. By virtue of CPR
23.8(c), PD23A 11.2, and CPR 3.3(5) and (6) any party affected has the
right to apply to vary or discharge the order. Any such application must
be made in writing within 7 days of the date of this order, on notice to all
other parties.

REASONS

1. As the hearing date for this summary judgment application approaches, I have
kept under review the question of whether it can be heard in person, or as a
hybrid hearing, or whether these should be wholly video proceedings. I have
concluded that the last of these options is the appropriate one.

2. Since the last order in this case, we have seen the imposition of Tier 4 restrictions
on London and the South East. There seems to be no real prospect of a loosening
of those restrictions, especially in view of the emergence and continuing spread
of the new strain of the Covid-19 virus. This makes it desirable to consider the
wholly video option, for the purposes of minimising the risk of transmission of
the virus, even though Court buildings are Covid-secure, with clear social
distancing in place.

3. The wholly video option brings with it the possibility of broadcasting the
proceedings (s 85A of the Courts Act 2003). That has attractions. Previous
procedural hearings in this case have attracted a good deal of interest from the
national and international media. The hearing in July 2020 was a hybrid hearing,
which required careful management to accommodate the media. I have no
doubt that the summary judgment application will be of considerable interest. It
is more than merely procedural. Moreover, the issues on that application are of
legal interest as well of general interest to members of the public.

4. I would have been reluctant to direct a broadcast, if this had been a witness
hearing. It is generally a daunting prospect to give evidence in a court. The
pressures are likely to be all the greater if the evidence were to be given in front
of a large audience of unseen strangers. It can be seen as contrary to the
interests of justice to place witnesses under unnecessary pressure of this kind.
But this hearing will not involve any witnesses. Indeed, it is not an application
that (as I read it) calls for findings of fact. It is made on the basis that the
defendant’s case could not realistically succeed even if the defendant proved all
the facts it has alleged. The issues raised are matters of law, or mixed law and
fact. The active participants will be Counsel and the Judge.

5. The direction for broadcasting is not a direction providing access to anyone who
chooses to tune in. Registration is required. One reason for that is that I have
been concerned about recording and broadcast by others. Recent experience
has shown that there are some, even among the established and experienced
broadcast media, indeed in the legal profession, who do not understand that it
is unlawful to make unauthorised recordings or transmissions of Court
proceedings. I have therefore made additional directions and put in place
administrative arrangements designed to ensure that nobody can attend without
(1) disclosing their identity and contact details and (2) being informed in clear
terms that it is prohibited to make or transmit any unauthorised video or audio
recording of the proceedings, which includes screenshots and any other method
of capturing images or sound (apart from Court sketches).

6. This in no way inhibits fair and accurate reporting of the hearing by those who
attend, either by live text reporting, or by other forms of reporting that do not
involve the making or use of recordings of the proceedings themselves. It is
important for the Court to retain autonomous control over what records of its
proceedings may be made and communicated. Anyone reading this Order and
these reasons should understand that proceedings may be taken against anyone
who breaches these restrictions. One such case involving breaches by the BBC
is currently pending a hearing on penalty.
APPENDIX A

General guidance on PDF bundles


This guidance is provided in order to achieve a level of useful consistency in the provision of PDF
bundles for use by judges in hearings. It is not immutable, and should give way to any specific
directions by particular courts or the requirements of particular judges in particular cases.

However, it should, if operated properly, provide judges with bundles which are as useful as they
can be made. It should be provided to solicitors and litigants in person as a guide to the construction
of useful bundles. They ought to be able to comply with all or most of these requirements. If they
cannot they should explain why.

However, please note that these notes are not intended for use in the tribunals.

Bundling should follow the following principles:

1. All bundles must, where the character of the document permits, be the subject of OCR
(optical character recognition). This is the process which turns the document from a mere
picture of a document to one in which the text can be read as text so that the document
becomes word-searchable and words can be highlighted in the process of marking them up.
It is acknowledged that some individual documents may not be susceptible to the process,
but most should be.
2. All documents should appear in portrait mode. If an original document is in landscape, then
it should be inserted so that it can be read with a 90 degree rotation clockwise. No
document should appear upside down.
3. The default view for all pages should be 100%.
4. If a core bundle is required under normal practice, then a PDF core bundle should be
produced complying with the same requirements as a paper bundle.
5. Proper thought should be given to the number of bundles required. It is generally not helpful
to have to open a significant number of PDF files during the course of a hearing in order to
get at documents. In very many cases it will doubtless be possible to combine all
documents in one bundle – statements of case, witness statements and other documents
(this is the preference of the Family Courts). In larger cases it may be sensible to separate
out those categories of documents into separate bundles. However, further subdivision is
not helpful – eg it is not helpful to have separate witness statements in separate PDF files.
Generally speaking a chronological run of documents should be in one overall file. Again
generally speaking, authorities should always be provided in a separate file; this file should
be page numbered like all others – see below.
6. All pages in a bundle must be numbered, and if possible by a computer generated
numbering, or at least in typed form (if added by a scanner), and not numbered by hand. If
computer generated or typed the number becomes machine readable and can be searched
for. Again if possible, the number should be preceded by a letter, whether the letter of the
bundle or not. This aids searching. For example, it will be quick to search for and go to page
A134 by searching for that. Searching for just “134” may throw up a number of references to
that number which are not the page number, which takes the computer time.
7. Pagination should not mask relevant detail on the original document.
8. If practicable any scans of documents should not be greater than 300 dpi, in order to avoid
slow scrolling or rendering.
9. All significant documents and all sections in bundles must be bookmarked for ease of
navigation, with an appropriate description as the bookmark. The bookmark should contain
the page number of the document.
10. An index or table of contents of the documents should be prepared. If practicable entries
should be hyperlinked to the indexed document. Common sense will usually dictate the
level of detail in this table of contents.
11. All PDF files must contain a short version of the name of the case and an indication of the
number/letter of the bundle, and end with the hearing date. For example “Carpenters v
Adventurers Bundle B 1-4-20”; or “Carpenters v Adventures correspondence 1-4-20”. They
must not be labelled simply “Correspondence” or “Bundle B”.
12. If a bundle is to be added to after the file has been transmitted to the judge it should not be
assumed the judge will accept it as a complete replacement because he/she may already
have started to mark up the original. Inquiries should be made of the judge as to what the
judge would like to do about it. Absent a particular direction, a substitute bundle should be
made available, but any pages to be added should also be provided separately, in a
separate file, as well, with pages appropriately sub-numbered (143.1, 143.2 etc).

Delivering e-bundles

If an e-bundle is to be delivered by email the sender must be aware that there is a maximum size of
attached files which can be received by a justice.gov (DOM1) address. It is 36Mb in aggregate. An
email with an attached file which is bigger than that, or an email with files which together total more
than that in size, will be rejected. The maximum size of the attachments sent to an ejudiciary.net
address is 150Mb in aggregate. The latter limit is seldom likely to cause a problem, though a court-
side recipient may not have an Ejudiciary account. The former may. The solution may be to transmit
bundles by separate emails. Unless it is absolutely necessary the temptation to break sensibly
bundled documents into smaller bundles just for the purpose of transmission should be avoided.

If bundles are transmitted by email the email subject line should provide the following detail:

1. Case number;
2. Case name (shortest comprehensible version);
3. Hearing date;
4. Judge Name (if known);
5. The words in capitals “REMOTE HEARING”.

An alternative is to have documents submitted by a file uploading/downloading system. It is known


that some solicitors are using commercial services which provide for that. HMCTS is shortly to
launch its own service; details will be provided separately, and it is likely that solicitors will be
encouraged to use that service.

Litigants in person

An e-bundle is an organised collection of electronic copies of documents for use at a court hearing
that is to take place remotely (by video link or by telephone).

Ordinarily the applicant is responsible for preparing the e-bundle. If a litigant in person is the
applicant the e-bundle must still if at all possible, comply with the above requirements. If it is not
possible for a litigant in person to comply with the requirements on e-bundles, a brief explanation of
the reasons for this should be provided to the court as far in advance of the hearing as possible.
Where possible the litigant in person should identify a practical way of overcoming the problem so
that the court can consider this.
In a case in which a litigant in person is applicant and another party has legal representation the
legal representatives for other party should consider offering to prepare the e-bundle. The litigant in
person will still be entitled to indicate which documents they consider necessary for inclusion in the
e-bundle.

Litigants in person who are not eligible for legal aid or cannot access legal aid (publicly-funded legal
assistance) and who do not have the financial means to engage legal assistance may wish to
consider approaching an advice centre, law centre or pro bono organisation to see whether legal
assistance can be made available without charge. Some but not all advice centres, law centres and
pro bono organisations can now be reached on-line or by telephone.

Other internet guidance

Amongst the other internet guidance which is generally available, the following guides might be
thought to be particularly useful because of their links with the legal profession:

(a) A QEB guide to creating an e-bundle - see this YouTube video;

(b) A video prepared by St Philips Chambers on creating a bundle using Adobe Acrobat Pro:
https://st-philips.com/creating-and-using-electronic-hearing-bundles/

Future versions of this guidance

This document is intended to be a living document which is to be revised from time to time in the
light of experience. It will therefore be useful to check back with it from time to time.

Mr Justice Mann
Judge in charge of Live Services
APPENDIX B
Contact details

Chancery Listing: ChanceryJudgesListing@Justice.gov.uk


Queen’s Bench Listing: QBJudgesListingOffice@Justice.gov.uk
Judge’s clerk: Graeme.miller1@justice.gov.uk
APPENDIX C

Remote Hearing Attendance Form

Case No
Case Name
Claimant
Defendant(s)

File name of this document


Hearing date and time
Party filing this document

ALL PERSONS ATTENDING ON BEHALF OF THIS PARTY


Name Email Direct phone Capacity attending Speaking
(Y/N)

GDPR: Your personal data will be processed for the purposes of facilitating your
attendance at the hearing, ensuring that the proceedings are conducted without
disruption, and enforcing the applicable laws and directions, including those requiring
orderly behaviour during proceedings, prohibiting live text-based communication from
court, and the making of audio-visual recordings. They will not be used for any other
purposes, and will not be kept on file for longer than is necessary for those purposes.