Trial by ordeal? Not necessarily

From the first entirely remote hearing of lockdown to present day, the Bar has rapidly acclimatised to conducting trials by video. Michael Mylonas QC introduces one chambers’ verdict on what’s worked, what hasn’t and what it might all mean for future practice

On 29 January 2020, the first two patients tested positive for COVID-19 in the UK. Since then, everyday life has been transformed. At the time of writing, the lockdown has just been extended for a further three weeks. Understandably, perhaps, the government has not been enthusiastic about disclosing how and when the restrictions on movement will be eased. It is prudent to assume and plan on the basis that we will all continue living and working in a restricted manner for some time yet.

The restrictions have had different impacts on different areas of the Judiciary and the Bar. The tripartite letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division to Circuit and District Judges confirmed that remote hearings were successfully dealing with approximately 40% of the pre-COVID-19 workload. Video rather than phone hearings were better placed to deal with anything that is not ‘intrinsically simple’. HMCTS’s capacity to deal with video hearings was to be increased from the week commencing 20 April. Judges and advocates have adapted rapidly to the reliance on electronic bundling. Much is being done prior to the hearings to ensure that they run smoothly. There is optimism that much of the work of the courts can continue to be done as the restrictions continue.

There are some notes of caution. Remote hearings are not suitable for all cases. The interests of justice and fairness and the need for a judge to carefully assess a witness may preclude the hearing taking place remotely. Cases involving the welfare of a child are specifically identified as likely to fall into this category. See, for example, Re P (A Child: Remote Hearing) [2020] EWFC 32, 16 April 2020, where at §26, the President set out his reasons for adjourning a case that required detailed assessment of witnesses and their demeanour.

Conducting cases by video is more tiring for judges than a live hearing and requires more advance preparation from the lawyers. With growing familiarity with the process, there are accounts of parties adopting an inappropriately relaxed approach to their attendance at remote hearings. Generally, however, the message is clear. Court users have embraced the rapid roll-out of remote hearings and proved that much court business can be managed whilst the restrictions continue. 

Remote hearings for Serjeants’ Inn over the next month range from the virtual Supreme Court hearing – before seven Justices – of the test case concerning the issue of illegality as a defence in medical negligence actions to a nine-day hearing of a Dubai Financial Services Authority case in the Dubai Financial Markets Tribunal involving five applicants (two companies and three individuals) with all parties video-linking in from locations across the globe.

How best, then, to work effectively in a time of pandemic? Much has already been written about the mechanics of remote hearings and how to prepare for success. On 16 April, the Inns of Court College of Advocacy published the comprehensive Principles for Remote Advocacy, a guide which is essential reading for all advocates and solicitors contemplating a remote hearing. Alongside that guidance we hope that our experience on the ground may also inform others how best to prepare for success. 

The advent of the GDPR Regulation catapulted many at the Bar into the paper-lite – and in some cases entirely paper-free – practice. Working in that way is not perfect for every situation but has certainly improved life for many who are able to take advantage of it. In a similar way, the pressure rapidly to adapt to remote hearings has forced lawyers to embrace and get on with the technology. It has been a steep learning curve, but the hope must be that some of the lessons we have learned will allow us to practise more efficiently and effectively in a post-Covid19 world. Proper preparation means that remote hearings need not be a trial by ordeal.

Court of Protection: Nageena Khalique QC and Sophia Roper

Our experience of an entirely remote three-day listed hearing less than 24 hours after the edict to avoid non-essential contact was, we believe, the first of its kind; although we are accustomed in our medical treatment practice to dealing with out-of-hours emergency telephone applications, often involving a number of witnesses. 

In this Court of Protection case, a dispute had arisen as to whether it was in the best interests of a man in his 70s, who suffered a catastrophic stroke, to continue to receive clinically assisted nutrition and hydration: a difficult and sensitive case in any situation. There were five parties, 11 witnesses (including three independent experts) and evidence running to over 4,000 pages. First, a crucial test run enabled us to position screens and cameras, identify glitches, and enhance sound quality. The Skype for Business ‘meeting’ was kept open throughout the hearing with one link. Although a split screen with several participants was useful for pre-hearing discussion, once proceedings started, each witness was ‘spotlighted’ and whoever was speaking appeared full screen. The Press Association was invited to ensure transparency.

Documents were circulated by email and a video was uploaded. Loss of connection was quickly flagged on the participants list with little time lost. Counsel and clients communicated by text and email. The hearing was recorded on Skype and uploaded to Sharefile. 

Lawyers felt that things had run smoothly from a legal perspective, although the process was tiring and intense. Lay witnesses gave variable feedback: as they did not see the advocate, it was hard to know when she had stopped speaking. Some found background noises distracting. The restrictions on visiting care homes meant that the judge could not visit P as he would have done before COVID-19. Importantly, given the issues involved, P’s daughter felt the virtual courtroom was too informal: ‘It did not feel like justice.’

So is the future ‘virtual’ in the Court of Protection? Some may feel excluded by the distance of a remote hearing. We must be aware of that and ensure that all steps are taken to make the proceedings accessible and inclusive. It may be better to adjourn non-urgent cases to enable P’s full participation. However, as long as the interests of the client and justice can both be served, remote hearings may be a practical, efficient and cost-saving way forward for a range of the less complicated Court of Protection hearings once the pandemic is over.

Civil and criminal: Hannah Hinton

For civil cases, the remote hearings protocol of 26 March 2020 is being used in the High Court alongside guidance for ‘Immediates’ and non-urgent work

First, the court checks with the parties whether they consent to the use of telephone and/or video-link, giving parties an opportunity to comment. Second, the hearing is scheduled and parties confirm the time estimate with details of the listing included in the published cause list to enable members of the public and the press to dial in if they wish. The court then requests electronic bundles (core/authorities) by email for pre-reading and ease of access. The High Court is working on creating a bundle repository for files to be deposited. 

In my experience, the system works best when the judge’s clerk contacts counsel in the case in advance to liaise over these practical issues. 

There are minor difficulties with cases over-running. In one of my recent cases, the parties in the subsequent case began entering the call while the judge was giving his ruling and the parties were addressing the court in respect of ancillary orders. This was distracting. The day after the hearing we received a typed copy of the ex tempore ruling. 

Criminal cases and proceedings under the Extradition Act 2003 are facilitated by remote access where possible and lawful under relevant legislation amended by the Coronavirus Act 2020. Section 51 of the Criminal Justice Act 2003 and ss 206A and 206C of the Extradition Act 2003 govern the use of live links for hearings. Under the amended legislation only certain types of hearing can take place remotely, not including jury trials. HMCTS’s operational guidance is updated daily and, generally speaking, only urgent work is carried out. 

Unfortunately, the criminal courts’ systems are not well set up for remote access hearings. This results in a lack of clarity for lawyers and their clients. The use of remote linking must not be at the expense of a fair hearing, so the technology needs to be improved quickly to ensure full participation. The crime and extradition courts are busy courts with much work to get through on an urgent basis, so the scheduling of hearings is naturally less streamlined than the High Court where hearings are scheduled well in advance. 

Remote hearings must allow for confidential private conferences with clients in custody. Occasionally, audio equipment has not allowed a defendant on a video-link from prison to hear the lawyers, so the judges have had to repeat what has been said. Skype for Business does not allow the defendant’s lawyer to see him/her. HMCTS needs to ensure it has proper facilities for remote access hearings before it can begin to conduct substantive cases. The rollout of CVP (cloud video platform) for live streaming hearings will be more effective for those involving multiple attendees with prison linking, and should ease much of the pressure.

Professional discipline: George Thomas

Many professional regulatory bodies are gradually acclimatising to remote hearings and for uncomplicated hearings there is an increasing willingness to conduct hearings remotely. For interim orders and review hearings there will often be a statutory requirement that a review take place. 

The specific challenge that arises in these hearings is in managing client communications. Moments frequently arise during an in-person hearing where brief instructions need to be taken, sometimes on uncontroversial matters. While this might previously have been communicated in a short exchange in the hearing room, it is likely that you will need a formal ‘withdrawal’ from the remote hearing in order to take instructions. It remains essential that you confirm your client’s instructions, and ensure at each stage that you have said all that they wish you to cover. This raises a new challenge for client care, as such brief intermissions are not usually the opportunity for a stressed client to get everything off their chest. 

It is therefore essential to manage expectations and explain to the professional and lay clients prior to the hearing how these short intermissions will take place. While it may be tempting to provide WhatsApp/messaging contact details to the lay client, it will be necessary to explain that a running commentary on the proceedings via these parallel channels will be unhelpful and distracting. Ideally, it should be agreed that only one other person will contact counsel while the remote hearing is in progress. 

Technical trips? Some tips

First Tier Tribunal: Alexander dos Santos 

I attempted to start a five-day video link appeal in the First Tier Tribunal last month, following an unsuccessful application to adjourn. Attempts to join the hearing failed for various parties involved, despite re-boots and experimentation with different browsers. 

I echo the advice of colleagues that a trial run is essential: trying to iron out the wrinkles on the morning is inadvisable. Ultimately, I had to join by telephone.

It is also worth obtaining a direct email address for the court in case you need to provide a further document (even if an amended draft order). The ‘PDF’ button in the court’s system apparently does not work very well and shows small images of the uploaded document. A second device (iPad or other) for note taking is crucial.

Clinical negligence: Simon Cridland

A facility for dealing with soft copy documents is essential unless you have a solicitor willing to print off and deliver a hard copy. Tablets and laptops work well. I recommend purchasing a tablet with a lot of memory, and a fast processor. I use, and highly recommend, the large iPad Pro. 

I also recommend consolidating all the documentation for one case into one PDF bundle. Adobe Expert allows you to order documents should documents arrive after the bundle is finalised.

It is well worth purchasing an app to review and mark up the documentation, once it is in the cloud, or downloaded to your tablet. I have high praise for PDF Expert Pro, which allows you to easily read, highlight, tab-up/bookmark, mark up the documents in any way you wish. You can also add sticky notes, which can be particularly useful when annotating. The app is intuitive and extremely easy to navigate. 

After I have tabbed/bookmarked the pages, in a similar way to a printed bundle, it is very easy to identify and review the page required. You can apply optical ccharacter recognition (OCR) to the PDF once downloaded, allowing searches of the bundle, which can be extremely useful.

Colleagues also rate apps like GoodReader Pro and Scrivener, all of which have similar functionality to PDF Expert. Utilising a tablet for your documentation also means that your laptop can be used for typing, or the video call. Although working from a tablet takes some getting used to, once you are familiar with using it, and the software, you will be loathe to work from paper; after all, a tablet is far less backbreaking than a suitcase filled with lever-arch files. 

For more tips on e-bundling, see ‘Paperless & remote working in Covid-19 times: parts 1 and 2’ (Counsel May and June 2020).

Category: 
Issue: 
Author details: 
Michael Mylonas QC

Michael Mylonas QC is Head of the Court of Protection team at Serjeants’ Inn.

Nageena Khalique QC

Nageena Khalique QC is a silk at Serjeants' Inn.

Sophia Roper

Sophia Roper is a barrister at Serjeants' Inn.

Hannah Hinton

Hannah Hinton is a barrister at Serjeants' Inn.

George Thomas

George Thomas is a barrister at Serjeants' Inn

Alexander dos Santos

Alexander dos Santos is a barrister at Serjeants' Inn.

Simon Cridland

Simon Cridland is a barrister at Serjeants' Inn.