Wolverhampton City Council & Ors v Persons Unknown  EWHC 75
This was a review hearing for a quia timet injunction against ‘car cruising’ in areas of the Claimant local authorities before His Honour Judge Worster sitting as a High Court Judge in the QBD, Birmingham District Registry. ‘Car cruising’, or ‘street cruising’ as it is sometimes defined, is a congregation of two or more motor vehicles driving dangerously or in an anti-social way so as to cause nuisance, damage or danger to the public; usually gatherings to race or perform stunts in cars, motorbikes or quad bikes, which have been a particular problem in particular parts of Birmingham.
The injunction was originally granted in 2014 and renewed for a further 3 years in January 2018 subject to a review hearing.
The hearing was listed for 30 March 2020. Due to the COVID 19 pandemic and the restrictions on movement announced by the Government on 23 March 2020, the Judge directed that the Claimants’ attendance be dispensed with, and that the Claimants consult through social media by publicising a press release and inviting responses. Four responses were received and taken into account by the Judge.
The Judge stated in his judgment that the hearing was “technically in open court, but the reality of the restrictions on movement at the moment is such that further steps are desirable to ensure that the public are aware of the court’s continued consideration of this order. This short written judgment can be published on BAILII to satisfy that requirement.”
The Judge considered the Claimants’ written representations and the responses from the consultation. He held that the order should continue in force, applying the principles in the recent Court of Appeal decisions in Boyd v Ineos Upstream Ltd  EWCA Civ 515, Cuadrilla v Persons Unknown  EWHC 2459 and Canada Goose UK Retail Ltd v Persons Unknown  EWCA Civ 303 (see Jack Dillon‘s article on Canada Goose). In particular he took into account the increased danger these activities pose at a time when the NHS and the Police are stretched.
This is an interesting example of the new era that we find ourselves in, but it is not clear from the Judgment how this case fits with the new rules in terms of public hearings. To recap:
- The general rule is that a hearing is to be in public, save for specified exceptions which includes that the court for any other reason considers this to be necessary to secure the proper administration of justice: CPR 39.2(3)(g). If it is so required, then a copy of the court’s order must be published at www.judiciary.uk, and any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order: CPR 39.2(5).
- The Protocol Regarding Remote Hearings issued by the Lord Chief Justice first published on 20 March 2020 recognised that the principles of open justice remain paramount, and that on the question of public v private hearings (at para 8):
“… remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways: (a) one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room; (b) allowing accredited journalists to log in to the remote hearing; and/or (c) live streaming of the hearing over the internet…”
- This was followed on 25 March 2020 by the new Practice Direction 51Y (“PD 51Y”), headed “Video or Audio Hearings During Coronavirus Pandemic”:
- During the period in which this Direction is in force, where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.
- Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In such circumstances it will not be necessary to make an order under paragraph 2 and such an order may not be made.
- Any hearing held in private under paragraph 2 must be recorded, where that is practicable, in a manner directed by the court. Where authorised under s.32 of the Crime and Courts Act 2013 or s.85A of the Courts Act 2003 (as inserted by the Coronavirus Act 2020), the court may direct the hearing to be video recorded, otherwise the hearing must be audio recorded. On the application of any person, any recording so made is to be accessed in a court building, with the consent of the court.
- Paragraph 4 of PD 51Y was clarified by new Practice Direction 51ZA effective yesterday (2 April 2020) that the reference to “application” in the final sentence is to be read as “request”.
In short, the Courts should strive to hold hearings in public, either by broadcasting, whether audio or video, to an open court room (para 8(a) Protocol, para 2 PD 51Y), or making the hearing accessible to journalists/ the media (para 8(b) Protocol, para 3 PD 51Y), or livestreamed on the internet (para 8(c) of the Protocol). But if it is not practicable to put one of these into effect, then the hearing is ‘in private’ and must be recorded, and can be accessed on the request of any person with the consent of the court.
Accordingly, in the present case, when HHJ Worster said that the hearing was still “technically in open court” that should mean that it was broadcast or livestreamed as per para 8 of the Protocol and para 2 PD51Y, but there was no reference to this in the judgment. Instead the Judge referred to ‘further steps’ being desirable and a short written judgment being published on BAILII to that end. It is clear from the rules that publication on BAILII alone will not be sufficient to make a ‘public hearing’. Parties should encourage the Courts to be clear in giving judgment whether a hearing is being held in public or private, and if in public then how the proceedings are being broadcast or livestreamed, in order to ensure compliance with the new PD51Y.