Litigation during the lockdown: My experience after a 4-day trial

By Luiz Costa

Despite the lockdown imposed by the UK government (albeit this week it has been somewhat relaxed) on 23 March 2020, in an unprecedented step to attempt to limit the spread of Coronavirus, the UK justice system has been adopting a 'business (as much as possible) as usual' approach. The UK courts and tribunals have been 'working hard to keep our justice system functioning' as per official guidance updated on 11 May 2020.

After being through a 4-day trial last week, I can provide testimony to the lengths the courts and law practitioners can go to assist keeping the justice system operating during the pandemic. Acting for Defendants in a case spanning more than 10 years, my clients' case was considered a 'priority' case as per Her Majesty's Courts and Tribunals Services (HMCTS) guidance. Not because it was a matter of life and death, but because the trial hearing had been listed in August 2019. Although the Claimant's team sought to adjourn the trial based on the restrictions imposed by Coronavirus, the court in question responded simply by saying that it had all necessary infrastructure to conduct the hearing remotely in its entirety and that the trial judge was more than encouraged to proceed with the trial as it was in the public interest that the justice system did not come to a halt during these difficult times. The trial would be conducted via Skype for Business (the predecessor of Microsoft Teams).

As this response from the court was given one month before trial, there was a sudden rush amongst the parties' legal teams to quickly come to grips with the most up to date guidance on remote hearings, preparation of electronic bundles and the technological aspects of having all relevant parties able to participate in the trial hearing.

Despite the court's very helpful directions on pre-trial tasks, the parties' legal teams agreed very practical exchange procedures (a lot of leniency was afforded by both sides) given the sheer volume of documents relating to the hearing. The method of service of these documents was adapted to allow for the effective transmission of the various electronic documents between legal teams.

In addition, various 'tester' video calls took place amongst the teams and their clients initially, and then with everyone who would participate at trial. One business day before trial was due to commence, the trial judge's clerk ran an hour-long tester video call with all parties, their legal teams and witnesses. It was clear that the court was ready to hear the case. It had all the necessary tools to proceed, but most importantly, it had the correct attitude and motivation to conduct this mid-length trial remotely.

An hour before trial, the judge's clerk ran another 30-minute tester video call to test the microphones and webcams of all who would take part in the hearing. Precisely at the time the trial was due to commence the judge joined the video call, and from then on it was definitely 'business as usual'.

Given that taking part in a video call hearing is very much more focussed than being at court, we had various short ten-minute breaks. One really requires more breaks when constantly looking at a laptop or desktop screen. Although some of the participants preferred hard copies of the trial bundle, the majority used the electronic version. This helped in the speed at which the witnesses could be taken to the relevant pages of the hearing bundle (and no, we did not use just a handful of documents during trial... we used very many different documents in the various volumes of the bundle). The witnesses did not have to navigate through 11 lever arch files, thus reducing the usual time to locate the correct document. A simple 'Ctrl F' command plus the bundle page number did the trick. The legal teams and the trial judge were very helpful in assisting the witnesses who were in their 60s on how to use the electronic system. So, I suppose in that sense everyone went above and beyond. Even so, the court rules were not relaxed. Court decorum and the civil procedure rules were followed to the letter.

Having experienced the potential that remote hearings have, I believe that this may and should be used in future for a variety of cases after the lockdown is lifted (albeit it is not suitable for every case). It is arguably cheaper for clients as there are no costs involved in travelling and waiting times. The fact that as a law practitioner you can join the video call five minutes before the hearing starts allows you the flexibility to deal with other tasks (even if dealing with urgent matters for other clients - a common situation for solicitors) up to the point of joining the call.

For those who are about to experience remote hearings, there's useful guidance provided by the Civil Justice in England & Wales Protocol Regarding Remote Hearings. From a practitioner's point of view, I am convinced that this trial was a successful experience and one which should be replicated during these difficult times and beyond. Despite the method of the hearing, the same competencies are still expected of law practitioners: preparation, attention to detail (including making sure that you have good quality equipment and accounts on Skype and Adobe Pro) and, particularly important for solicitors, client care.

Unsurprisingly, my experience was very positive. For many years Fletcher Day has had all most up to date technological equipment required for these types of hearings.

Please contact Luiz Costa with your dispute resolution queries on 020 7870 3898.

 

14 May, 2020
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