Since the UK Government announced the lockdown on 23 March 2020, Blake Morgan’s Litigation team has spent over 75 hours in remote hearings including 13 applications, a week-long trial and an appeal.
The English commercial courts were arguably global leaders in adapting quickly to the lockdown. One day prior to the Government’s announcement, the court published a Protocol Regarding Remote Hearings (the “Protocol”), which has been updated as events have unfolded. On 23 March 2020 the Lord Chief Justice announced that civil hearings would be held remotely during the pandemic, and on 25 March 2020 a new Practice Direction 51Y dealing with “video or audio hearings during the Coronavirus pandemic” came into force.
Within days of the Government’s announcement the English commercial courts were holding the first remote hearings.
Here are our top tips for preparing for and attending English court hearings during lockdown.
What to expect
Remote hearings move more slowly than in the traditional courtroom – and time estimates should be revised upwards accordingly. Time can be lost to technology glitches and the repetition required in the absence of more free-flowing, in person, hearings. Transcribers are heroically trying to keep up.
Judges are embracing the new format but we have found that remote hearings can be more tiring for judges and advocates alike, with some judges inserting more and longer breaks into the court day than normal.
However, our and our clients’ impressions are overwhelmingly positive. With the right planning and learning from your experiences, remote hearings are working remarkably well, and many court users, including clients, seem to prefer the format.
Before the remote court hearing
The court is set up to use numerous remote communication platforms. In our experience, there has been little acrimony between parties about choosing which remote communication software to use. The court is always the final arbiter and often makes its own independent decision anyway. Once a platform has been decided upon, it pays to make sure everyone knows how to use it. Consider a pre-hearing test.
Having a second screen is essential, especially for witnesses providing oral testimony.
If using a wireless internet connect, maintaining a strong Wi-Fi signal is important. Where possible, it is a good idea to disconnect non-essential devices which connect to the internet. Other distractions can include loud ringtones and landlines, which should be set to silent or disconnected just as they would in a physical courtroom. You do not want to be told off by a judge!
One of the biggest changes has been the accelerated transition from physical paper files – often running to many volumes – to electronic bundles.
The Protocol only deals briefly with electronic bundles, but the court expects them to be prepared in PDF or similar format, and to be accessible by all parties. As in a traditional court hearing, it can be damaging to a party’s submissions if there are lengthy pauses while attendees find the right page in a bundle, so preparing an easily navigable bundle is vital.
The Protocol requires that bundles have interactive tabs and bookmarks, but parties should be mindful of the size of the document – we have seen time lost to laptops struggling to open large files. More so than ever, parties are being encouraged to limit bundles to what is strictly necessary, and several recent judgments contain comments on bundle preparation, in terms of content as well as form.
Legal teams should ensure those giving oral evidence have checked ahead of time that their hardware works and that they know how to operate the software. This includes turning microphones and cameras on and off, and that they are visible on screen and the sound is clear.
Ideally witnesses will position the screen being used for displaying documents so that it is as close to their camera as possible, both as to distance and angle. This will avoid them looking away from the camera when they are giving evidence. Judges will want to see a witness’ whole face when they speak, and too much movement can result in poor microphone pickup.
Anyone who will appear on camera should think about the positioning of their camera and the source of light. Ideally you will be looking upwards slightly with a light source behind the camera. Pick a quiet room with minimal clutter in the background, and with a door that shuts and to which a ‘Keep Out’ sign can easily be affixed! Windows can cause glare so should not be visible if at all possible.
Witnesses should also check that they are comfortable with navigating the electronic bundle, and opening new windows to facilitate simultaneous review of two or more documents.
In our experience, the swearing in of witnesses proceeds in much the same way as in a physical courtroom. Witness details are supplied to the clerk in advance, and the swearing is led by the usher who, in the usual way, will prompt the witness to repeat the appropriate oath/affirmation wording. One difference is any witness who is swearing rather than affirming will, of course, need to have and use their own copy of the appropriate book.
During the remote court hearing
Solicitors and clients will have their microphones muted and cameras turned off. Nevertheless, everyone should dress appropriately for court, in case the focus does come on you.
One benefit of remote hearings is the ease with which clients can communicate with their legal team, and solicitors with advocates. Agree on a method of communication beforehand, such as WhatsApp or similar groups; anything which allows for instant secure messaging.
The pandemic and resulting lockdown have resulted in the courts making sweeping changes to the way that they work, almost overnight. Whether remote hearings will become widespread for future commercial hearings remains to be seen. But, considering the court’s success in implementing them to date, we can see the court continuing, in appropriate circumstances, to hold certain hearings in this way.
In particular, we see that they are potentially beneficial to the conduct of international litigation. Remote hearings remove geographical barriers to attendance, and are therefore a boon for overseas clients. They also give the opportunity, in complex multi-jurisdictional claims, for overseas lawyers to attend and ‘listen in’ more freely.
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