The grim reaches of COVID-19 are affecting all corners of society in a way that few could have imagined even 12 weeks ago. With a vaccine deemed unlikely to be readily available this year, the mantra we will be getting used to over the next few weeks relates to the need to create a “new normal” way of living while this breakthrough is awaited.
Court users will not be immune to this new normal. While the prevalence and the degrees of success have been patchy, it is inevitable that remote hearings for costs proceedings are here to stay, at least in the medium term. The Association of Costs Lawyers has circulated guidance for the conduct of remote costs hearings, which should serve as essential reading, alongside the judiciary guidance, for any practitioner appearing before a court remotely.
Rather than regurgitate that must-read document, it is perhaps useful to emphasise some of the practical advice we should bear in mind when preparing for this brave new world.
Neither “communication is key” nor “failure to prepare is to prepare to fail” are surprising mantras for advocates, but these have never been more important when dealing with a detailed assessment or oral provisional assessment hearing. While we will all inevitably be dealing with our own battles with technology over the coming weeks and months, parties can, and should, make the process smoother by being open and co-operative with their communications and preparations. We are all encouraged to agree the practicalities of remote hearings far in advance, be that the scope of the hearing, the platform to be used or the preliminary issues to be determined.
The electronic filing of the papers (the e-bundle) is of paramount importance to the smooth running of any remote assessment hearing. The use of data rooms for sharing these documents and inserting hyperlinks and bookmarks in the e-bundle are areas which advocates will become au fait with over the coming months. A searchable and (importantly) matching e-bundle for the court and parties to navigate will be essential in providing for smooth running hearings. While this may take slightly longer than the traditional bundle in terms of preparation, it will pay dividends, with the court being in a position quickly and effectively to consider any document it would have wished to consider at a hearing in person.
In the spirit of co-operation, it is highly recommended that advocates conduct a technological dry run in the days prior to the hearing. This will enable the advocates to overcome any technical glitches which rear their heads, and for them to become fully familiar with the platform being utilised for the hearing.
With confidence in the technology performing as it should, a well prepared e-bundle and a prevailing wind, costs practitioners should expect a smooth hearing as far as the remote element of an assessment goes. In terms of practical advice for the hearing itself not covered by the guidance, you would do well to remember to mute your microphone when not speaking to avoid interference (but you probably knew that already from the weekly Zoom family quiz).
Of course, things will inevitably go wrong, hearings will start late and they will run over due to technical difficulties. It will be incumbent upon all users of the court to apply patience and understanding in this new normal. Advocates who previously may have been used to conducting several hearings in close proximity will be well served to provide a bit more leeway in their diary. The guidance is quite clear that costs consequences may follow adjourned hearings due to the absence of a party.
Nevertheless, with some additional preparation and a spirit of co-operation between parties and the courts, it is clear that hearings in costs proceedings can operate in this period of uncertainty. Costs practitioners have dealt with an ever-changing landscape over the past decade, and it is, to paraphrase Darwin, those who are most adaptable to change who will thrive. With pro-active engagement with this guidance, there is no reason why remote costs hearings will not do so in this new normal.