PT Ventures SGPS SA v Vidatel Ltd
| Jurisdiction | British Virgin Islands |
| Judge | Jack, J [Ag.] |
| Judgment Date | 27 July 2020 |
| Neutral Citation | VG 2020 HC 64 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHC (COM) 2015/0117 |
| Date | 27 July 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(COMMERCIAL DIVISION)
BVIHC (COM) 2015/0117
BVIHC (COM) 2019/0067
Ms. Akesha Adonis of Maples and Calder for the claimant
Ms. Tamara Cameron for the defendant
Ms. Maya M Barry for the Attorney-General as amicus curiae
By an application issued on 23 rd July 2020 the claimant, PT Ventures, seeks the following orders:
“1. Permission, pursuant to CPR 2.7( 4), CPR 29.3 and the [Covid-19] Emergency Measures [Practice Direction], that:
a. the trial of these proceedings shall be conducted wholly as a remote video hearing in accordance with the provisions of the Emergency Measures PD, subject to any further order or direction of the Court.
b. the technology platform to be used for this purpose shall be Zoom Business video conference, operated by the International Dispute Resolution Centre in London.
2. In addition, the parties have permission pursuant to paragraph 10.2 of the Emergency Measures PD to arrange a live transcript of the trial listed to be heard on 27–31 July 2020.
3. The live note operators are permitted along with providing remote access to real-time transcripts to record the proceedings and provide an electronic presentation of evidence.”
The application was supported by the defendant, Vidatel. Because it raised important issues, where the parties were effectively in dispute with the Registry, I thought it appropriate to direct that the Registry serve Her Majesty's AttorneyGeneral with a copy of the application, so that the Attorney might appear either on behalf of the Registry or as amicus curiae. In the event, Ms. Maya M Barry from the Attorney-General's chambers appeared as amicus curiae. I am grateful to her for her assistance. Her submission was that on each of the limbs of the application I had a discretion to grant or refuse the application.
The underlying case concerns the enforcement of an arbitration award for US$646,445,968 given by a Paris arbitration panel in favour of PT Ventures against Vidatel. I have delivered two judgments in this matter already. One dealt with an application for summary judgment by PT Ventures. The other concerned an application by Vidatel to adduce evidence of Angolan law. On the first I granted summary judgment on some issues, refused it on one other and adjourned one issue to trial. On the second I refused permission to rely on Angolan law. The trial of the outstanding issues is due to begin on Monday 27 th July 2020. I therefore heard the application of 23 rd July on Friday 24 th July.
The first order sought has two parts: (a) that the trial be heard virtually; and (b) that a London-based Zoom system be used. (a) is uncontroversial. The borders to the British Virgin Islands are largely shut as a result of the pandemic. Counsel from England and the experts on French law (the only witnesses) cannot fly into the Territory. In the recent case of Kathryn Ma Wai Fong (as Executrix of the Estate of the late Wong Kie Nai) v Incredible Power Ltd and others 1 Wallbank J heard the trial of the action completely remotely. There were difficulties caused by the different time-zones, but from a technical point of view the trial has gone well. There can be no complaint that justice could not be done under such circumstances. Accordingly, I approve (a).
Limb (b) raises quite different issues. The Court provides a Zoom service, which has operated very satisfactorily since 2017. The main difficulties which have arisen during the pandemic, where almost all matters have had to be heard remotely, have been a result of band-width problems, but these are obviously outwith the control of the Zoom operator, whether the operator is internal to the Court or external. There is no technical difficulty using with the Court's Zoom service, which has provided a good service during the pandemic.
The external system proposed by the parties allows particular pages of the bundles to be flashed up electronically. That would be an advantage if electronic bundles were to be used during the trial, but in fact physical bundles have been provided. These work perfectly satisfactorily without the difficulties caused by having to navigate electronic bundles. It is suggested that it might be easier for witnesses to use electronic bundles instead of physical bundles, but in general physical bundles are easier to deal with that electronic bundles unless multiple screens are available.
It is for the Court to provide the facilities for litigation to take place. It is not for the parties to do so. This is a clear distinction from the position in relation to arbitration. When hearing a case in Court, a judge is exercising the power of the State. The State has a duty to treat all litigants the same.
Further, the Court needs to ensure the security and control of its proceedings. If a third party provider were used, the Court would have no means of ensuring the suitability of the employees operating the external Zoom service. Nor could it
ensure, for example, that no unauthorized recording was made by the external service provider. The Court would have no means of ensuring that journalists or members of the public who wished to attend the virtual hearings could do so. With a service provider in London, there would in practice be no means of enforcing any orders of the Court against the service provider.
For these reasons, I refuse (b). The trial will proceed with the Court's own Zoom system.
I turn then to the use of the Live-note system. I do not know the precise details of the system which it is proposed be used next week. Generally, there is a team of two who make the transcript. One operates a computer assisted transcription machine, a CAT machine; the other checks the transcript in real time and makes corrections. In addition, although this is not necessary for making a real-time transcript, the Live-note system will make an audio recording of what is said, so that any issues can be checked when finalizing the overnight transcript. I assume this is, at least in outline, what is proposed.
It can be seen that there are two aspects to this: first the making of the transcript and second the making of the audio recording. Each needs to be considered separately.
The Recording of Court Proceedings Act 1995 2 provides, so far as material:
“3(1) Notes of evidence or a record of the proceedings in a Court may be taken down or recorded mechanically or by any other means, where a Judge, Magistrate or other person presiding over a Court, is required by law to
(a) take down notes of evidence; or
(b) cause notes of evidence to be taken down; or
(c) make a record of the proceedings.
(2) The notes of evidence or record of proceedings taken down or recorded in accordance with subsection (1) shall be the official record of the Court.
4. The Registrar or Clerk of the Court shall cause a transcript, of the notes of evidence or record of proceedings taken down or recorded in accordance with section 3(1), to be prepared as soon as practicable after the close of proceedings each day.
5. A transcript prepared in accordance with section 4 shall be verified by a certificate of the person responsible for the accuracy of the taking or recording of the evidence or proceedings and the transcript.”
Section 7 provides for the making of the official transcript under section 4 and its verification under section 5 by the Court Reporters (although this expression is not used in the Act).
The drafting of these sections is liable to confuse, because “record” is used in two senses. The first is in the sense of an audio or video recording (“recorded mechanically”). The second is used in the sense of “the official record of the Court”. Historically, this was kept on vellum rolls, but now consists of the paper Court files. Except insofar as transcripts are put on the Court file, the documents on the Court file are not a verbatim record of what occurs in Court, rather the file consists of the formal steps taken by the Court, such as copies of the orders made by the Court and documents lodged by the parties.
Under section 3(1), there are two alternative ways of the Court preparing its official record: either contemporaneous notes of evidence can be taken, by shorthand or longhand or typed (for example, on a CAT machine), or a mechanical audio or video recording can be made. In either case, a transcript must be made: section 4, and verified by the Court Reporter: section 5. Once verified, the transcript is the official copy of the Court record of the hearing. Save for judgments, where a judge has the power and duty to check and revise any oral judgment delivered, 3 this official transcript must be used for any appeal.
The rather confused language of the Act has led to the view being expressed that only the Court Reporter can make a transcript of proceedings. This is true insofar as the official...
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