City firm Simmons & Simmons has apologised to the High Court and referred itself to the Solicitors Regulation Authority (SRA) after the court transcribers it used took unauthorised audio recordings of eight hearings.
Mr Justice Miles said it was “unfortunate” that two of the recordings were made in July and August this year, despite a “clear and comprehensive statement” from the High Court in a case in June involving another law firm  that advance court consent was needed.
Miles J said that Simmons & Simmons had appointed partner Tim Boyce to investigate the recordings made by Epiq Europe to enable it to produce transcripts of the hearings.
“On the basis of that evidence, I have no doubt that as far as Simmons & Simmons and their lay client is concerned, the unauthorised recording was entirely inadvertent.
“The solicitors knew of the prohibition on unauthorised recording but did not know that the recording had taken place.”
Miles J said that, as soon as they learnt what had happened, the solicitors “immediately apologised to the court”, reported themselves to the SRA, made retrospective applications for permission “very quickly” and appointed Mr Boyce to investigate.
“Simmons & Simmons have also put in place further processes and procedures internally so that the issue is properly flagged up in its dispute resolution department.”
Miles J said counsel for Epiq argued that their terms and conditions required the client to ensure that all necessary consents were obtained, and that this applied both to the process of transcription and to the audio recording.
The judge said this submission was “not entirely satisfactory”, since the High Court had already ruled, in June 2021, that Epiq’s terms and conditions “did not make it clear to solicitors” that wherever a transcription was taken there would also be an audio recording.
Delivering judgment in Business Mortgage Finance 4 plc v Hussain  EWHC 2766 (Ch) , Miles J said that in the earlier ruling involving Epiq and London litigation firm Enyo Law, His Honour Judge Davis-White QC had “set out a clear and comprehensive statement of the relevant legal principles” on audio recordings taken for transcription and concluded that “advance court consent was required”.
Miles J said counsel for Epiq had “helpfully” explained that the company would immediately be putting a notice on the front page of its order form for transcriptions that the consent of the court is required for audio recordings and for transcriptions.
Law firms would also be told that “an EX 107 form will have to be properly filled in before the transcription process can take place” and Epiq would be contacting existing bookings to alert them to the issue.
Miles J said he was satisfied that it was appropriate to grant retrospective permission for the eight unauthorised recordings.
He said the recordings were taken “in order to allow the transcriptions to take place, and only for that purpose, and have not been used for any other purpose, published or disseminated in any way”.
There was “no doubt that had the court been asked for consent in respect of any of the hearings, it would have granted consent” and no harm had arisen to other parties.
Miles J said he was satisfied that Simmons & Simmons and their clients “had taken all appropriate steps since finding out about the unauthorised recordings to put the matter right, to make this application and to put in place protections against a similar breach occurring in the future”.
Epiq’s position was separate and “should not affect the position” as regards the applicants.
The judge added that he was “entirely satisfied” that no further steps, such as reporting the matter to the Divisional Court or the SRA, should be taken against Simmons & Simmons.