Remote Hearings – What to Expect in our New Virtual Reality

When the country went into lockdown three months ago, the Civil Courts were faced with the enormous challenge as to how to conduct the thousands of hearings which are heard every day in circumstances where face to face contact was no longer possible. As with many aspects of society, the Civil Court had to adapt and one of the ways it has done so is by embracing the use of technology such as Skype for Business to conduct hearings and trials remotely.

While the use of telephone hearings has been common for some time, multi day hearings and trials being conducted entirely by video is unchartered territory for the Civil Court and Court users.

I recently attended a 7 day trial which was entirely conducted through Skype for Business. The case had been due to commence the week the country went into lockdown. The trial was adjourned and after a last-minute CMC, a longer trial than originally set down was listed to heard remotely for a couple of months later. Three of the witnesses (including the Claimant and one of the Defendants) attended from opposite sides of the world (and times zones) and there was also an interpreter who attended for the majority of the evidence. In other words, there were a lot of logistics involved. Having now finished the trial, I offer a guide below of what those attending a remote trial or hearing should expect.

What to expect

There is a significant amount of preparation involved during the build up to a hearing being conducted remotely as well as practical considerations throughout the trial. Some key points which need to be considered are:

1. Test – it is absolutely vital to test the set up prior to the hearing using the same software that will be used during the hearing with all attendees from your side. It is essential to ensure that the software being used is downloaded and tested in good time before the hearing;

2. Electronic Bundles – the use of an electronic bundle is likely to facilitate remote working in the current climate and the Court may well order that electronic bundles are filed in any event. You must ensure that the electronic bundles are easily navigable, and it is recommended that the documents within it should be OCR enabled;

3. Witnesses – given your witnesses will not be coming to Court physically, they too will each need to be provided with a copy of the bundle. Hard copy bundles may be easier to navigate so you must ensure that these are provided prior to the first day of trial. Consider who else may need a copy such as interpreters;

4. Communication – discuss with clients how they can communicate with their legal team during the hearing. There are a number of options available including, emails, instant messenger, phonecalls etc;

5. Length of trial – considerations of timings in cases where one or more of the parties are abroad and on different time zones. There are also very likely to be some connectivity issues and in circumstances where there will be an interpreter, additional time should be factored in;

6. The importance of adequate computer equipment -it is essential to have multiple screens especially if you are working from electronic bundles alone. A strong internet connection is also required;

7. Consider where you set up your space to attend the trial. It must be a quiet space where there will be no interruptions especially if you are giving evidence;

8. Mute your microphone at all times when you are not speaking and especially if you are taking conference calls with your client or legal team. Unless you are speaking, it is likely that your video will remain off for the entire trial;

9. Dress for court even if your video remains off, this is still a court hearing and sets you up in the right mindset; and

10. Do not record the hearing, it is a contempt of court to do so without the Court’s permission. The Court will make its own recording of the hearing.

Are virtual hearings here to stay?

The House of Lords Constitution Committee recently heard findings that video hearings were better than telephone hearings. Further, the Lord Chief Justice commented recently that Judges and practitioners had found using remote hearings successful and often more convenient in many types of cases.

However, it is too early to determine whether remote hearings will become one of the lasting effects of the COVID-19 crisis and there remain concerns amongst some as to the appropriateness for certain cases. What is clear is that it is likely that remote hearings will certainly be here to stay for perhaps the (very long) interim whilst the fight against this pandemic continues. In the circumstances, there are calls for simplifying current protocols and guidance. It is likely that we will see further comment from the Civil Court in the coming months as the restrictions remain ongoing.

In the meantime, the Civil Court continues to embrace the use of technology to ensure the Court room doors remain open (at least in a virtual sense anyway).

If you would like to discuss anything relating to this article, please contact Jess Chappell at [email protected]