Unsuccessful parties to litigation will often complain that judges are biased. In Re C (A Child), the Court of Appeal held that Mrs Justice Judd ought to have recused herself from the case when she was caught making disparaging remarks about a witness. (More here.)
The clerk to Mrs Justice Judd thought that by closing her laptop, her microphone was off. She then engaged in rather injudicious language in what she thought was a private conversation, making “a number of pejorative comments made by her about the Appellant including that she was pretending to have a cough and was trying ‘every trick in the book’ in order to avoid answering difficult questions”.
This case highlights the perils of audio and videoconferencing technologies being used in court proceedings, settlement negotiations or conversations with customers, suppliers or competitors.
Students of politics will remember Gordon Brown forgetting his microphone was still on when he insulted Gillian Duffy as a “bigoted woman” in the 2010 election, and John Major memorably referred to some of his cabinet colleagues as “bastards” when he thought he too was off air.
In using technology that may be unfamiliar to you, the lesson must be this: if even Prime Ministers and judges can get caught out, so can you.
- Make sure you know how to turn off and turn on the audio and video. If you are not 100% sure, ensure you received adequate training and practice turning sound on and off.
- Assume that one of the other participants is recording the call. What will what you say sound like in the cold light of day, played out of context?
- If you intend for discussions to be held “without prejudice”, say so at the outset of the call. Perhaps reference the “without prejudice” nature of the discussion at various points during it (especially if people come into the call late or a particularly sensitive matter is being discussed at that point in the call).
- Disconnect remote microphones and tape over cameras when not in use. Why chance it?
- Enforce your rights. If someone publishes a call that was confidential, and expressed and/or properly to be understood as such, be prepared to seek an injunction to restrain publication if it is threatened to be published (or have it taken down if it has been published without your consent).
- If caught, apologise. If you do end up “Doing a Mrs Justice Judd”, apologise quickly and sincerely.