It feels like online courts have been on the agenda forever, with little progress having been made to bring virtual hearings to life.
The 2019 novel coronavirus disease (COVID-19) pandemic has changed this almost overnight. Faced with a government lockdown and social distancing measures, courts threatened to come to a standstill. There were plenty of reports throughout March 2020 of county courts around the country adjourning hearings en masse. Indeed, the Insolvency and Companies Court immediately adjourned all winding up petitions for a minimum of three months, following the government’s decision on 23 March 2020.
That the work that has been undertaken by HMCTS, the judiciary and practitioners in ensuring virtual hearings have not only been possible, but capable of being run smoothly and successfully, is testament to all involved.
At the beginning of April, I was involved in a three day trial in the Commercial Court before Cockerill DBE HHJ in the matter of Towergate Financial (Group) Limited and others v Clark and others, where I acted for three of the defendants.
It was not until late afternoon on 27 March that we were informed that trial would be proceeding virtually. That communication informed the parties that the trial would be conducted via Skype for Business and “under no circumstances” would Her Ladyship be accepting any hard copy documents. Whilst this presented considerable challenges, in many respects we benefited from the haste in which direction changed. This resulted in increased co-operation across the board, mutual understanding of one another’s difficulties, and a judge with real patience for the process.
This blog shares some pointers from my experience of that virtual trial from the view of the instructing solicitor. My instructed counsel in Towergate, Matthew Hodson, has written a complementary piece from the advocate’s point of view.
Trial bundles require careful thought, not just about construction but also presentation and accessibility.
In the Towergate trial, the intention had been for the bundle to be split between hard copy and electronic documents. In haste, the bundles all had to be made available electronically. The claimants’ solicitors did a terrific job at pulling all of this together. By the time the bundles had been finalised for the first morning of trial, we had 34 PDFs, two Word documents and six Excel spreadsheets.
With more time available, and foresight, we would have used a document management system that all parties would have been able to access. This would have made the management and navigation of documents a simpler task for all concerned. However, this may not always be practical or cost effective, so what suggestions can I make?
Try to agree the contents of the bundle in good time and ensure that all parties have a chance to review the bundle before it is finalised. Use software that allows for new pages to be inserted into the bundle and pagination updated. If the bundle runs into separate files, label each file appropriately and in an obvious way, such as “A1 – Skeleton Arguments”, “B1 – Pleadings”, and so on.
If you are conducting the virtual hearing over WiFi, be conscious of using your bandwidth for anything other than streaming the hearing, as this could interfere with the quality of the connection. My recommendation is to open every file that you may want access to in advance of joining the hearing. If your computer needs to use your bandwidth in order to open the files, get this done ahead of time.
Virtual hearings are a new phenomenon for practitioners, but they are alien to our clients, and we must remember to educate them as to what the process will be. Many pre-trial conferences involve us telling clients that they should not expect the trial to mirror what they have become accustomed to seeing on television; there will be no shouts of “objection” and no banging of a gavel by the judge. Virtual hearings are yet another step away from this misconception and so expectation management is critical.
A remote hearing can be both daunting and concerning for clients, who may be reaching the end of a very lengthy (and possibly costly) litigation process. There will be concerns over whether justice can truly be done when conducted over a video call, and whether the judge will hear the case at its best. Remote trials will result in counsel providing more detailed skeleton arguments in advance and so oral submissions may be limited compared to in-person hearings. Managing the client’s expectations on this will be key.
Remote hearings bring with them some nuances that are worth bearing in mind when briefing counsel. One of these already mentioned is the skeleton argument. The early signs of virtual hearings are that the skeleton argument is now more important than ever before, with counsel placing greater reliance upon the skeleton for development of submissions. This point is emphasised by Matthew in his post.
The deadline for submission of the skeleton argument is not going to change, but the amount of preparation time is likely to increase. Delivery of the brief and the trial bundles needs to happen at as early a stage as possible to give counsel maximum time to prepare for trial.
Be sure to liaise with counsel or, in the very least their clerk, on the topic of the bundles. Do not assume that because the court will be proceeding with electronic bundles only, this will suit everyone. Your advocate may require, or simply prefer, to have the bundles delivered in hard copy form.
Prior to the hearing, I would encourage you to carry out a full test with your client. This could be in the form of a pre-trial conference with counsel, or artificially created for testing purposes only.
It would be sensible to run through the setup with your client and to test certain aspects, such as ensuring that their background and camera position appear appropriate, they look at the camera lens when answering questions (important for establishing credibility in cross-examination in my opinion), and that they are able to locate documents from the bundle.
During a virtual hearing, you will need to ensure that communication channels with both the client and counsel are open. Management of these channels will be important for the trial process.
My recommendation is to replicate as much of the in-person experience as possible. This could be through scheduling conference calls to be held directly before and after the hearing, and on adjourning for lunch. During the hearing itself, employing a messaging tool of some form will allow for direct contact from the client and for instructions to be given. A similar setup with counsel will ensure that you can make any points which you consider are pertinent. There is a balance to be struck and you need to ensure that you do not become a distraction to counsel. Replicate the in-person hearing. A simple solution would be to ask counsel to check with you prior to closing submissions.
The court will record the hearing, but one factor to consider is whether you wish to use a live transcription service. This can be costly and you will need to weigh up the benefits, but there can be an obvious advantage to having the transcript available to refer to during the course of a trial, particularly where there is live evidence being given by witnesses.
Are virtual trials going to be the future in a post-COVID-19 world?
Over the coming weeks, I suspect that we will see plenty of criticism of the remote hearing phenomenon and a clamour for in-person hearings to return. I personally would not want to see an end to in-person hearings. Where cases depend on the live evidence of key witnesses, I am not convinced that a virtual hearing can provide the same experience as an in-person hearing.
As with the Towergate trial, however, where cases are confined to submissions on the law and documents, is there any reason why they could not be held remotely?
If I could make just one improvement, it would be to provide for screen-sharing as a matter of course. The advocate leading submissions would share their screen of the trial bundle and take all other parties to the documents being referred to during the hearing (judge, opponents and witnesses alike), rather than waiting for every participant to locate the correct file and page.
Since the trial, I have written a book on the topic of virtual hearings, titled The Virtual Workspace: 50 Tips for Effective Video Conferencing. Forewords have been written by Susan Acland-Hood, Richard Susskind, The Secret Barrister and Gordon Exall. The book is available from Amazon as an eBook or paperback, with all profits being donated to NHS Charities Together.