Practical Law

The Senior Courts Costs Office (SCCO), like all courts, has been affected by the COVID-19 pandemic and subsequent lockdown. As with many other courts, the SCCO is doing its level best to keep the wheels of justice turning, by embracing remote hearings, electronic filing, and new practices. The court is coping well, likely assisted by most of those appearing before it being represented, and the implementation of electronic filing last year giving it a head start over some courts in handling electronic documents.

The SCCO has adopted the Courts and Tribunals Judiciary: Civil Justice in England and Wales: Protocol Regarding Remote Hearings but, given the protocol’s breadth, it is important to be aware of specific measures which the SCCO has implemented due to the specific problems being encountered by it.

Guidance on the formalities can be found here, with some practical advice below.

Preparation and communication are key to making sure that the hearing goes ahead. While some masters will have personal preferences (at least one laments Skype for Business), the approach by practitioners should remain largely the same.

Communicating with the opponent

While the parties’ positions may be entrenched, co-operation between the parties is vital, and all practitioners should be endeavouring to agree the approach and format of the hearing well in advance of it taking place, including:

• The format of the hearing (Skype, Microsoft Teams, Zoom, and so on).
• Whether a full detailed assessment is required, or assessment of preliminary points.
• The scope of the papers to lodge, subject to the master’s comments.
• An agreed bundle of offers to be made available at the conclusion of the detailed assessment.

The first two points must be notified to the SCCO at least 20 business days before the detailed assessment, confirming the agreed format or reasons why this is disputed.

Communicating with the court

The administrative team at the SCCO is striving to deal with all enquiries promptly. However, it is also important to note that the master’s clerks are splitting their week between being in the office and working remotely. When working from home, they will only be available via email.

Different masters have different preferences. It is important that you engage with their clerk at an early stage as to their preferred format for the hearing, and filing of papers.

Bundles

In a traditional detailed assessment, the receiving party would file a complete file of papers no less than seven days before the hearing. However, many practitioners will no longer have access to their offices, and will only have an electronic file of papers.

Determine what papers are relevant to the points being addressed at the hearing, especially if the hearing is limited to preliminary points. The court will not thank a party who files a 15,000 page bundle which could have been 3,000 pages.

Paginate, paginate, paginate. Electronic bundles should be bookmarked, tabbed, and paginated. Identify the pagination or bookmarks for items in dispute. This will make navigation for yourself and the master quicker during the assessment.

Agree with the court in advance about how you will file the papers. Larger files will not fit into an email attachment, but the SCCO clerks have been flexible in helping parties file papers, for example by downloading files via Dropbox links.

Remote hearings

Once the court has approved the proposed hearing format and made the relevant arrangements for the hearing to commence, what can you do, and what can you expect?

• Check that the technology works. Some masters will request a ten-minute video call the day before the hearing to test the connections.
• Have a back-up in place. If Skype fails, do all the parties have an agreed alternative platform?
• Some masters will break video hearings into one hour blocks, or provide for more regular breaks than an in-person hearing.
• Will your space be quiet throughout the entire hearing?
• Send the parties’ offers in a password-protected PDF for once the bill of costs has been assessed.
• Keep your desktop uncluttered. Jumping between various programs will slow you down.
• If using two screens, then take time to position them. You don’t want to be presenting only half your face every time you address the master.

In these unusual times, being prepared and showing flexibility are key. As with all technology, things can, and do, go wrong. Bundles don’t open, connections fail, and people talk over each other. The court has shown flexibility and good spirit when things have gone wrong, so keep calm and carry on.