It used to be so simple: the Court would fix a hearing date. Usually, it would confer with Counsels' clerks (but not Solicitors whose time, Courts - especially the High Court - seemed to consider was entirely at the discretion and convenience of the Court) to arrange it. And then solicitors would be told and they would have to make sure everyone attended at the appointed time. It really is not like television programmes present it with an advocate standing, saying "my witness isn't here so can I have an adjournment?"(actually, it's usually American programmes that perpetuate this mythical court where judges almost invariably accede, so they say "continuance").

And so, the corridor outside courts, or if people are very lucky, a witness' room, are full of people who have been told that the Court expects to hear from them that day - even though there is almost no chance of them being required on the specific day nominated.

But the reason that people have to turn up is that they have to give evidence in person and that allows advocates to test not only the evidence but also the witness. There is nothing more telling than the body language of a witness in the witness box: even con artists find it daunting.

But, in Huber v X-Yachts, even if it were not for the pandemic, arranging the attendance of everyone in a court in London would have been a hugely complex and very expensive undertaking. Amazingly, in cases like this, we may see that the overall cost of litigation is reduced and that - because there is less element of "having my day in Court" - we may see shorter trials and even a significant increase in out of court settlements. Simply, litigation without the drama feels somewhat muted.

But, the best laid plans, and all that....

On 3rd October, a judge ordered that the trial, listed for six days, before Kerr, J, beginning 30th October, be conducted using suitable video conferencing software. On 17th October, that order came up before Kerr, J who reviewed the facts and law. Kerr, J opened with " I fully concur with that direction; indeed, in the present circumstances the trial could not take place in any other way since the parties are based in Spain and Denmark and cannot travel to England at present. No adjournment is sought by either side. "

- "The claimants [who are the two witnesses of fact] are currently in Mallorca. "

- “Due to the unprecedented COVID virus situation. The First Claimant is in [an] at-risk category, being older than 60 years old. The Second Defendant is a company incorporated in Denmark. Its representatives would need to travel to the UK to attend an in-person hearing, which is unreasonable in the current climate.”

- The defendants’ witnesses of fact are Mr Jens Ole Skott, based in Haderslev, Denmark; and Mr Stuart Abernethy, based in Hamble, Southampton.

- "Each side will call one expert in biodeterioration and one expert in yacht surveying, making a total of four experts. I understand the experts are all based in England. "

- The defendants or their associated companies (collectively X-Yachts) are located in Southampton, Denmark and the Republic of Ireland. The second defendant is incorporated in Denmark. The company secretary of the England and Ireland based companies is Ms Deborah Weldon. Following Fraser J’s direction, she emailed my clerk on 13 November 2020 asking that various named individuals be permitted to attend the hearing remotely from Ireland and Denmark as well as England.

- The twelve named individuals from Denmark are all connected to X-Yachts, the Silver X, the claimants or this case in various ways. They include Mr Skott who is a witness, various shareholders and employees of X-Yachts companies and its Danish lawyer. From Ireland, permission to attend remotely is sought for Ms Weldon herself, who has coordinated the defence of the claim, and for Mr Conor Fanning, who is the managing director of the first defendant.

The defendants’ counsel, Mr Grey, submitted after the ruling of 3rd October in writing (as I shall shortly mention) that the court is not empowered to permit remote access to the trial for anyone outside the jurisdiction. Kerr, J said "It is common ground that all witnesses of fact and expert witnesses can give their evidence by video link, whether from within or from outside the jurisdiction. There is no difficulty about this. "

The problem arose not only out of a lack of clarity in the remote access rules but out of the express provisions of section 71 of the Senior Courts Act 1981, which provides that “[s]ittings of the High Court may be held, and any other business of the High Court may be conducted, at any place in England or Wales”.

That, it was considered, might imply exclusivity i.e. that the word "only" should be implied before "at any place."

Kerr, J said "Mr Slade (the solicitor representing the plaintiffs) recognised the concerns expressed by the Divisional Court in Gubarev v Orbis Business Intelligence Limited [2020] EWHC 2167 (QB), [2020] 4 WLR 122 (a hybrid hearing case) that remote attendance reduces the court’s ability to maintain control of the proceedings and enhances the opportunity for misuse; see the judgment of the court given by Dame Victoria Sharp P at [48]ff. It must be recognised, further, that remote attendance from outside the jurisdiction makes the sanction of contempt of court more difficult to enforce. "

But it is more complicated than that: "The defendants submit, through their counsel Mr Grey, that section 85A does not empower the court to permit the broadcasting of proceedings to locations outside England and Wales. Mr Grey points out that section 85B of the 2003 Act creates criminal sanctions for unauthorised transmission of an image or sound which is being broadcast in accordance with a direction under section 85A of the 2003 Act. "

The judge summarised the point in issue as "The defendants submit... that while witnesses can give their evidence by video link from outside England and Wales, observers cannot attend remotely from outside England and Wales. This would apply to witnesses, even if they are also parties,save when they are giving their evidence. They could not be permitted to attend the hearing remotely before or after giving their evidence, for example, to hear what is said by another witness."

So, a public gallery in court is fine; it is not fine on the global internet or other means of publication or broadcast.

The judge said " I do not interpret the silence in the statutory provisions on the issue I have to decide as an implicit prohibition against permitting remote attendance from outside England and Wales. There are good reasons for concluding that the intention to be imputed to Parliament is to the contrary. They are, briefly, as follows. "

"I consider the backdrop against which the 2020 Act was enacted. It includes the policy of keeping the courts running as far as possible and using technological means to do so. Civil litigation before the courts of England and Wales frequently has international dimensions. Parliament must be taken to have had that in mind. Long before the pandemic, civil litigation here frequently included the now commonplace feature of remote attendance by a witness giving evidence from abroad" While the learned Judge's reasoning is in general something I would support, the presumption that "Parliament must have had" something in mind is, in my own view, fallacious. Legislative drafting in the UK has become incredibly sloppy and, at time, far from fit for purpose. To presume that those drafting law under the pressures that the Judge rightly refers to is, in my view, placing an expectation of competence that is all too often absent.

However, his next point, which does not rely on the competence of legislative draftsmen, works far better: "it was well known when the 2020 Act was passed that the prevalence of the virus and the concern of states to inhibit its spread were causing widespread restrictions on international travel and would lead to a commensurate increase in the use of electronic communication techniques to keep conversations going across international borders. Viewed in that light, a prohibition against allowing remote attendance of civil proceedings from abroad seems parochial."

And then there is that great fall-back: common sense "Furthermore, the narrow construction of section 85A of the 2003 Act proposed by the defendants has obvious drawbacks which could create unfairness and inequality of arms. In a case such as this one, the claimants themselves would be prevented, apart from when giving their evidence, from remotely attending the trial of their own case, being in Mallorca and unable to travel to England. "

Further "on the defendant’s construction, where a party’s witnesses happen to be in the jurisdiction, they would (unless the court orders otherwise) be able to see and hear what other witnesses say; while witnesses located outside the jurisdiction would not. ...That is potentially unfair and can also be inconvenient and make the court’s task of assessing the evidence, and the witness’s task of giving evidence, more difficult. An expert giving evidence from Denmark would not be able to hear what her or his counterpart giving evidence from Wales had said to the judge; and so forth. I find it difficult to impute to Parliament an intention to bring about such consequences for civil litigation."

There are other arguments that are, in my view, makeweights but which, as part of the same application as the others, are useful - now decisions have been handed down, future courts will not be troubled...