Remote hearings – here to stay?
March 2020; faced with a government lockdown and social distancing measures, courts threatened to come to a standstill. County courts around the country were adjourning hearings en masse. In response, and with remarkable speed Her Majesty’s Courts and Tribunals Service joined the 21st century and hearings went remote.
Despite some initial teething problems, responses have, by and large, been positive. The Lord Chief Justice’s Report 2020, laid before Parliament on 3 November 2020, noted the impact of the pandemic and, whilst acknowledging that audio and video hearings may not always be suitable, noted that: ‘remote technology has been very effective, demonstrating the widespread benefits to be gained from modernisation’.
The Civil Justice Council’s Report and Recommendations on the impact of Covid-19 measures on the civil justice system, following a ‘rapid review’, found that 71.5% of participants had found their experience of remote hearings to be positive or very positive.
So the future is virtual? Perhaps, but remote hearings are not without their challenges and are not suitable in all circumstances. The Forum of Insurance Lawyers (FOIL) has called for a presumption in the Civil Procedure Rules that trials and hearings involving oral evidence or litigants in person should not be heard remotely.
A key lesson learned in the last 12 months is that client management in the run up to a final hearing is more important than ever.
Any hearing can be both daunting and concerning for a policyholder but this is further complicated when you add in concerns over how to use the technology involved along with concerns over whether they will get a fair hearing when it is conducted over video or telephone.
As we head towards a final hearing we explain 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.
The client will need to be guided through their own conduct and what is expected of them at the hearing, particularly if they are giving live evidence as a witness. Wherever possible we run through the setup with the client and any other witnesses 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 (which we send to them hard copy as well as by email).
Their face will be large on the screen but other more subtle clues such as body language, reaction and demeanour are more difficult to read. This can be particularly important where credibility is an issue, for example where liability for a road traffic accident remains in dispute.
But there are also some ‘legal’ requirements they need to be aware of. So we make sure that they understand the need not to have anyone in the room who is not permitted by the court, and not to have any notes or other documents to hand other than trial bundles. They must understand that they cannot confer with anyone midway through evidence. We clearly set these expectations in advance.
It is also important to set up a mechanism to enable counsel and client to communicate effectively without becoming a distraction. Set ground rules ahead of the hearing – perhaps scheduling conference calls to be held directly before and after the hearing. 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.
In a position paper on civil litigation post-Covid, FOIL said it was harder to project the dignity of the court in remote hearings. It is certainly true that video communication is less direct, and therefore less engaging. In the serious surroundings of a courtroom, people rarely let their attention wander. When viewing a screen from home, the situation is very different. Even judges and advocates can occasionally lose concentration. However the other side of this coin is that the client and witnesses may be more comfortable and less intimidated giving evidence from their own home rather than in the formal environment of a courtroom.
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. While 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.
However, where cases are confined to submissions on the law and documents, is there any reason why they could not be held remotely?
FOIL said there should be a presumption that interim applications, case management conferences and other administrative hearings not involving oral evidence, detailed assessments and appeals should be heard remotely and I would agree with this.
Our experience has been that remote hearings have worked well for Stage 3 hearings and I would envisage that they will continue to be used following the whiplash reforms.
Could they be improved? Undoubtedly. A standard platform would help, as would provision for screen-sharing as a matter of course so that all parties can see the document being referred to rather than waiting for every participant to locate the correct file and page.
Remote hearings are a brave new world. It is likely that even as society returns to normal, there will be a greatly increased appetite for remote hearings as the courts struggle to clear the backlog of hearings. We are learning not only that they can be just as effective, but that they can be a proportionate means of getting things done cheaply and quickly.
Our legacy team recently recorded a podcast on the subject of remote trials where three of the team shared their experiences and thoughts. This can be found here.
To discuss this further, please contact Rebecca Woodward.