Courting Controversy: Video-Conferencing and Smoke Balls

While we are surrounded by the gloom of Covid-19, with blue skies and chirping birds not bringing the usual cheer, the time at hand allows us to introspect on what we are doing and how we will continue doing it going forward.

For one, in these times, the critics of online technology and social media are probably grateful for its existence, as those are the only tools which effectively allow people to be in touch with families, work and the world.

The Indian government has taken its fight against the Coronavirus very seriously (though the jury is still out on whether the effects and the proper implementation of lockdown were fully considered), as has the Indian judicial system.

For one, administrative steps taken by the Indian Supreme Court since early March 2020, and followed by the High Courts and the lower courts, show how proactive the court administration has been. By only allowing urgent matters to be listed when the Coronavirus concerns first started to be raised while following social distance norms and staggered timings, to immediately enabling hearings through video-conference after stricter government restrictions were brought in after March 23 on to the movement of persons, the Court has adapted itself to the new norm.

In fact, very commendably, the steps taken by Indian courts have not only preceded steps taken by courts in other jurisdictions, but are also tailored to Indian circumstances where lawyers are being given various options for attending video-conference hearings, rather than having it limited to one service provider whose services would come at an additional cost, and may not necessarily work on all internet networks or software.

That has similarly been the approach of Bar Associations all over India, including the SCBA and the SCAORA. By supporting the courts with the option of telephone and video-conferencing, the Bar Associates have been proactive in looking to protect the health of its members, while continuing to support justice dispensation for urgent cases.

Interestingly, Bar Associations around the world are following suit, with the Chair of the Bar Council of England & Wales recently stating,

“[w]e are pleased that sensible measures are being taken to reduce the health risks that Covid-19 presents. The courts and the Bar will adapt to the norm being remote hearings by video or telephone and, unusually, in person...

....The Bar Council is delighted that barristers can continue to represent the public in these difficult times.”

However, while we all hope that these social distancing restrictions will start weaning away after April 13 and life will slowly creep back to normal, given the unpredictability of the situation, it would augur well to plan for a few more months ahead.

For one, if the restrictions continue beyond 13 April 2020, then one must consider whether the Court should allow online hearings through video-conference for certain regular cases. Those could be hearings that are time-bound and preceded by written submissions and set out within strict time-slots, so that on its conclusion and a suitable gap, the next hearing can commence.

The judges, lawyers and the stenographers could all be online and the system would work like a virtual court-room. The Court or Bar Associations can subscribe to a software which allows for virtual meetings room in an encrypted environment, without the cost burden being passed on to individual lawyers or litigants. That would not only keep more litigating lawyers busy, but also allow for the dispensation of justice by the disposal of cases.

So in all of this bit about the use of video-conferencing, what about smoke-balls? That has nothing to do with courts and the use of technology, but simply a throw-back to a case which most law students have studied and which arose from the influenza pandemic of 1889-1890, that had killed close to 1 million people worldwide.

The decision is that of the English Court of Appeal in Carlill vs the Carbolic Smoke Ball Company, [1892], used to teach law students the concept of offer and acceptance under contract law. However, interestingly, before the Queen’s Bench Division which was the Court of first instance, one of the arguments taken by the Smoke Ball Company was that their offer through the advertisement, under which any person who used the smoke balls three times a day for two weeks but still contracted influenza would be paid a sum of one hundred pounds, was nothing else but a wager. According to them, being a wager, it was a void contract for which they would not be liable. That argument was dismissed by Hawkins J, who held:

“It is not easy to define with precision what amounts to a wagering contract, nor the narrow line of demarcation which separates a wagering from an ordinary contract; but, according to my view, a wagering contract is one by which two persons, professing to hold opposite views touching the issue of a future uncertain event, mutually agree that, dependent upon the determination of that event, one shall win from the other, and that other shall pay or hand over to him, a sum of money or other stake; neither of the contracting parties having any other interest in that contract than the sum or stake he will so win or lose, there being no other real consideration for the making of such contract by either of the parties. It is essential to a wagering contract that each party may under it either win or lose, whether he will win or lose being dependent on the issue of the event, and, therefore, remaining uncertain until that issue is known. If either of the parties may win but cannot lose, or may lose but cannot win, it is not a wagering contract.”

While the Smoke Ball Company’s arguments on wager were not even considered worthy of being pursued before the Court of Appeal, it is quite possible to have a similar factual situation today. If someone today offers a medicine or even a placebo for curing COVID-19, to be taken along with social distancing, it is quite likely that it would have a number of takers.

However, such offerors should beware: there is a 130-year-old legal precedent that would be applicable in favour of the acceptor of the offer, and give that acceptor contractual relief through a court of law against any such gimmick.