The Bar in the time of coronavirus

The Bar… will it ever be the same again? Melanie Tether and Nadia Motraghi analyse some of the immediate challenges – how to assess the suitability of an individual case for a remote hearing; how to ensure full participation of all parties so that cases are dealt with justly, as well as on an equal footing; and how to enable open justice


When on 31 December 2019 a cluster of pneumonia cases in the city of Wuhan, China was reported to the World Health Organisation, few members of the Bar would have imagined that within less than four months the novel coronavirus responsible for this cluster would have transformed their working lives and brought about radical changes in the operation of courts and tribunals in the United Kingdom.

We are now at a point where most courts and tribunals have suspended all in person hearings, including jury trials, where the new Civil Justice Protocol Regarding Remote Hearings (‘Civil Justice Protocol’) states ‘the current pandemic necessitates the use of remote hearings wherever possible’ and where some courts have already successfully adapted to carrying out remote hearings, including the Court of Appeal and Supreme Court.

In this time of crisis, it is plainly in the interests of the nation as a whole and the profession that the judicial system uses remote hearings effectively.

A number of jurisdictions have begun issuing protocols on remote hearings, the most comprehensive of which is the Civil Justice Protocol. The Protocol envisages (para 12) that ‘it will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings.’

The Civil Justice Protocol confirms that ‘the method by which all hearings including remote hearings, are conducted is always a matter for the judge(s), operating in accordance with the applicable law, Rules and Practice Directions’ (para 3) and does not circumscribe the judge’s duty to determine all issues judicially and in accordance with normal principles.

The challenge for the Bar

As a profession the Bar is not known for its rapid adoption of new technology, but on this occasion the profession is likely to be on its steepest learning curve yet. It is often said that necessity is the mother of invention, or perhaps here, the mother of implementation. In meeting that challenge, the Civil Justice Protocol (para 4) states that ‘it is inevitable that undertaking numerous hearings remotely will cause teething troubles. All parties are urged to be sympathetic to the technological and other difficulties experienced by others.’

Platforms hitherto unheard of by most barristers and judges are becoming common currency, such as Skype for Business, Zoom and Microsoft Teams. These have free packages as well as professional packages and in most cases can be accessed simply by being invited to click on an invitation link. However, none of these has been designed for courts specifically. An HMCTS guide to telephone and video hearings during the coronavirus outbreak explains that HMCTS is in the process of introducing its own ‘cloud video platform’ for hearings, using Kinly videoconferencing software. This will create virtual courtrooms which can be accessed through any laptop or video device.

Already since the start of the pandemic the first full trial entirely by remote hearing has taken place in the Court of Protection using the platform Skype for Business, involving numerous witnesses, five parties, three experts and also attended by two journalists, all of whom participated remotely.

John McKendrick QC, who represented one of the parties, explains that the hearing ‘challenged a lot of pre-conceived assumptions’ about how a remote hearing would work. He considers that it proved to be an effective way of conducting the trial, although it has been reported that one of the participants experienced the remote hearing as a second-best option and felt that she had not been able to get her message across as she would have done in person.

Cyrus Larizadeh QC, Chair of the Family Law Bar Association (FLBA), explains that audio-visual hearings have been used in family cases for some time, eg where parents are abroad. He says: ‘The Family Justice System is currently using a smorgasbord of different platforms with different judges and magistrates using different means depending on availability of technology. Many family hearings are running remotely now including some witness hearings and FLBA is now advocating for one or two platforms to be selected so that judges and practitioners have space and time to familiarise themselves with those preferred platforms going forward.’

What is clear, however, and underscored by the Civil Justice Protocol, is that remote hearings will require both the court and the parties to be more proactive (para 10). Some of the most pressing issues that the courts and tribunals, as well as the parties, will need to grapple with concern how to:

  • assess the suitability of an individual case for a remote hearing (‘triaging’);
  • ensure the full participation of all parties so that cases are dealt with justly, as well as on an equal footing;
  • enable open justice.

At this stage there are more questions than answers, but it seems to us that the following will fall for consideration, especially in cases involving witness evidence:

Assessing suitability for remote hearing

The Civil Justice Protocol provides that judges will, wherever possible, propose to the parties one of three solutions:

1. a remote hearing via a particular platform;

2. that the case proceed in person with appropriate safeguards against the transmission of COVID-19;

3. that the case be adjourned because a remote hearing is not possible and the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.

The Protocol provides that the parties may make submissions in writing should they wish to challenge the court’s proposal, whereupon the judge will make a binding determination and give all other necessary directions (para 17).

It appears to us that in order for the court to be able to make that assessment, it would be useful for the parties to complete a triaging questionnaire on the suitability of a remote hearing and to liaise with one another prior to submitting this to the court or tribunal. We would suggest this should include identifying a preferred platform or platforms. Parties should be invited to access the preferred platform(s) prior to completing the questionnaire so that any difficulties can be identified and explored.

A triaging questionnaire should also cover witnesses’ or other participants’ ability to access the platform. A key area of concern will be how to ensure that litigants in person and witnesses, especially those with disabilities or other health needs, or those with very limited resources, will be able to participate in a remote hearing, including whether they have suitable technology, internet services and private space in their homes. This will need to be carefully explored in individual cases.

Inevitably, remote hearings will most easily be organised in cases involving no or little live evidence, a single judge, and without litigants in person, intermediaries or interpreters. But in Re One Blackfriars Limited (in Liquidation) an application to postpone a five-week trial due to take place in June on grounds of safety, technological challenges and potential fairness was rejected. Pointing out that remote hearings are currently the default position, the judge ordered the parties to cooperate in exploring ways in which a fully remote hearing could take place safely in accordance with the Civil Justice Protocol.

Preparation for trial during the pandemic

The pandemic presents new challenges for trial preparation. Firstly, the length of time required to comply with directions is likely to increase due to the unavailability of representatives, parties, witnesses and documents and the difficulty of accessing experts or ancillary information such as medical records.

Secondly, disclosure whether by copy documents or electronically may be hampered by a lack of access to offices, workplaces or other locations where relevant documents are stored. Electronic disclosure may not be feasible in all cases.

Thirdly, given the difficulty of producing hard copy bundles while solicitors’ offices are effectively closed, or at least their post and print rooms are, it is hard to see how bundles can be produced unless this is done electronically. However, creating an electronic bundle (e-bundle) presents its own challenges. Solicitors may not yet be trained in doing so or have access to the relevant software and in a document-heavy case collating an e-bundle may be a formidable task for a solicitor or legal team working from home.

For the most part, barristers will need to upskill to be able to navigate, search and highlight e-bundles and witness statements to ensure that they are as in command of an e-bundle as they would be its paper equivalent.

Holding remote hearings

There are of course significant differences between a remote hearing and one held in person. To name but a few:

  • there is a greater need for introductions at the start of a hearing, and for ‘turn-taking conventions’, not least because participants cannot refer to the layout of a courtroom to understand which party is speaking;
  • effective ways for parties to give instructions to their legal representatives in the course of the hearing are necessary; platforms have different features and some include a private ‘chat side bar’ which can be used for private discussion;
  • participants will need either a split screen or two devices to participate in a remote hearing – one to screen the virtual courtroom and the other for the e-bundle;
  • in Skype for Business, and some of the other platforms, someone needs to assist in acting as de facto camera operator, moving between screens containing the many participants to ‘spotlight’ the person who is speaking or giving evidence, although in some applications eg in Zoom the person speaking is automatically highlighted or their screen brought to the fore;
  • when a witness is giving evidence, at least in Skype for Business, the witness cannot see the advocate, although the advocate can see the witness, and the advocate cannot see the judge.

Open justice: how to ensure public hearings

Not all hearings are heard in public, but where they are, what is required when the hearing is carried out remotely? And where is the balance to be struck between the demands of open justice and timely justice, if there is no clarity on when we shall return to in person hearings?

The Coronavirus Act 2020 provides that proceedings in the courts and the First-tier and Upper Tribunal which are conducted wholly as video or audio proceedings may be broadcast and recorded if the court or tribunal so directs. The Act also makes it an offence for any person to make or attempt to make an unauthorised recording or transmission of the broadcast.

The live streaming provisions of the Act do not appear to apply to employment tribunals and the Employment Appeal Tribunal. It seems likely that this was an oversight which will need to remedied, although the employment tribunals rules of procedure already permit hearings by ‘electronic communication’ provided the parties and members of the public ‘attending the hearing’ are able to hear and see what the tribunal hears and sees (rule 46).

The Civil Justice Protocol confirms that so far as possible, remote hearings should remain public and that the principle of open justice remains paramount. It suggests this can be achieved in a number of ways:

1. one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open courtroom;

2. allowing accredited journalists to log in to the remote hearing; and/or

3. live streaming of the hearing over the internet.

New Practice Direction 51Y made by the Master of the Rolls on 24 March 2020 provides that ‘where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice’. Some have doubted whether this practice direction is compatible with the principle of open justice.

As to livestreaming, the Commercial Court has already seen its first remote hearing, in National Bank of Kazakhstan v BNY Mellon & Ors, where Teare J directed the continuation of the hearing, via Zoom. But livestreaming as a matter of course seems certain to present challenges, both in relation to the feasibility of broadcasting potentially thousands of hearings a day but also the safeguards to be used while doing so eg as to the sharing of documents and witness statements with potential viewers, including journalists.

Further reforms

The judicial protocols published over recent weeks were produced with remarkable speed. Moving forward, consideration could be given to other measures which may simplify and shorten remote hearings or reduce the number of cases requiring a final hearing. These could include:

  • judicial assessment of the strength and weaknesses of the parties’ respective cases, which may clarify the issues in dispute and encourage settlement;
  • rules or procedures requiring the parties to cooperate in narrowing the issues in dispute eg by agreeing facts, identifying the factual disputes that are critical to the resolution of the claim and, where possible, agreeing the law to be applied to the facts;
  • greater encouragement for parties to explore alternative dispute resolution, possibly through mandatory mediation.

Conclusion

A move to remote hearings for many, if not most, cases appears very likely and indeed will be essential to maintain a functioning judicial system during the coronavirus outbreak.

In practice, however, remote hearings will not simply replicate in person hearings but will prompt the profession to consider new ways of working and conducting trial preparation and advocacy.

A programme to transform the civil justice system by modernising the courts and tribunals has been under way since September 2016 and technological innovation and virtual hearings are two of its main building blocks.

The coronavirus outbreak will inevitably give additional impetus to these reforms. Whilst members of the Bar would naturally have hoped to have more time to adjust to the challenges presented by remote hearings, the pause in the work of the courts caused by the pandemic will give them an opportunity to acquire the technological skills which a virtual system of justice necessarily requires.

 

This is an updated version of an article first published on 27 March on www.counselmagazine.co.uk
Category: 
Issue: 
Author details: 
Melanie Tether

Melanie Tether (1995 call) is a leading practitioner in employment and equality law at Old Square Chambers.

Nadia Motraghi

Nadia Motraghi (2004 call) is a leading practitioner in employment and equality law at Old Square Chambers.