Virtual Hearings and Virtual Trials

22nd April 2020

Charlie Newington-Bridges

Introduction
1. The need for virtual hearings and virtual trials for civil proceedings has presented the judiciary, counsel and solicitors with a whole series of challenges, not least learning how the technology works.

2. What follows is not a definitive guide to virtual hearings, but more a series of observations and tips for practitioners following the virtual hearings in which members of St John’s have participated.

Technology Platforms
3. Our experience is that the judiciary use one of Zoom or Skype for Business (‘S4B’) for virtual hearings. The hearings are generally originated by the judge or listings officer and invitations are sent to participants with a link for the participants. The hearings are normally password protected and the password accompanies the invitation/link.

4. There have been series of articles about the security or insecurity of Zoom, but nonetheless virtual hearings are taking place over it. The relative merits of the two platforms may become more apparent over time, but our initial experience suggests that Zoom is the marginally better user experience. Skype for Business appears to be slightly less reliable and glitches relating to the audio for Mac Users have been experienced. In one instance requiring a telephone conference to be run simultaneously with the S4B video conference (see below).

5. It is understood that that the courts will upgrade their systems so that Microsoft Teams can be used for virtual hearings, but for the time being that platform is not, at least in our experience, being used.

6. The Lord Chief Justice and the heads of the Civil Divisions produced a useful paper recently (a copy of which is available as a link with this article and on the chambers’ website) which provide some guidance on virtual hearings.

7. What is clear, we’d suggest, is that the judiciary are finding their way in same way as practitioners. Technology may prove unreliable or the users of it, but most judges are sympathetic to the technology problems that will inevitably arise.

The Virtual Hearing

8. The hearings themselves then tend to operate in the normal way, although judges are giving stern warnings about recording proceedings (unless solicitors are specifically requested to record).

9. Counsel are making submissions in turn and solicitors are present but generally muted or just listening in to the hearing.

10. Confidential communication i.e. to provide instructions has come by way of email or WhatsApp during hearings, so that counsel and solicitors can communicate without talking over the video conference.

11. It is our experience that hearings tend to take less time as virtual hearings than they would do as hearings in the physical court. This may be for one or more of the following reasons:

11.1. The parties seem to be particularly well-prepared for virtual hearings, perhaps concerned that something will go wrong.
11.2. This means that all the papers are sent by email to the judge and there seems to be fewer instances of ‘paper’ papers going missing in court administration;
11.3. Counsel provide skeletons setting out what needs to be done and their submissions in fuller form than may have been the case previously.
11.4. Counsel seem to be make briefer submissions;
11.5. Judges tend to give more succinct judgments.

12. As usual, counsel are being asked to produce orders, which seem to go more often than not directly by email to the judge rather the court staff. This appears to have had the effect of orders being turned round by judges more quickly than may have been the case previously.

13. Overall, the rather more rapid than expected transition to virtual hearings has worked reasonably well. There are many adjournments of hearings of course, but judges and the courts have embraced the change and are at least attempting to hear as many matters as they can by way of virtual hearings.

The Virtual Trial

14. Members of chambers have conducted trials virtually and there are trials listed to be heard virtually in the next few weeks.

15. A member of chambers has conducted a trial in the Administrative Court by Skype. This involved no witness evidence, so the submissions and judgment only were conducted virtually. This was conducted in largely the same way as the virtual hearings described above.

16. A 7 day virtual trial is listed for one member in the next 3-4 weeks and a series of interesting and useful directions have been given for that.

17. There have been 2 PTRs, the first was before the lockdown and at that PTR amongst other less interesting directions, it was agreed that as there are 11 witnesses to get through and an expert, opening submissions would be foregone, but both counsel would produce skeleton arguments that would double as opening submissions or would include written openings.

18. At the second PTR last week that agreement looked prescient (which it wasn’t) as the Judge agreed that no oral openings was a good idea in the context of a virtual trial.

19. The trial will take place by Skype for Business. The courts have a system called ‘Linc’ over which the Skype for Business videoconference will take place. There is some difficulty with the audio for this if you have a Mac. However, at the PTR a solution was fudged by using a phone conference line as well as doing a video conference by Skype for Business. This worked surprisingly well and there was no or little noticeable delay between picture and voice or vice versa.

20. The other ‘directions’, given by the judge to prepare for trial are below. The directions are in inverted commas as the judge declined to put them in an order, but merely encouraged the parties to co-operate in arranging matters.

20.1. The original bundle had 5,500 pages in it. The judge said words to the effect that if the parties wanted to go-ahead as a virtual trial, which all parties dis, then a core bundle needed to be produced for trial with a maximum of 1,000 pages in it.

20.2. He said that that the bundle would be too unwieldy and impossible to use virtually by witnesses otherwise. The parties were encouraged rather than ordered to co-operate to produce that bundle. It was anticipated that the core bundle would include pleadings, witness statements and exhibits and other key documents only.

20.3. The witnesses, complying with social distancing rules, are to give evidence at the solicitors’ offices. This was for two reasons. Firstly, the broadband connections were likely to be robust and reliable at solicitors’ offices. Secondly, it would be easier to swear the witnesses in at solicitors’ offices.

20.4. Judges, as well as counsel and parties, have been finding virtual hearings and trials ‘unusually tiring’ (see the LCJ document referred to above). This may be because there is an intensity to a virtual hearing that is not replicated in court or perhaps because the novelty of virtual trials/hearings is such that those involved are concentrating in a way that they do not at court.

21. However, the result of this is that judges are requesting that breaks are built in to the trial timetable more frequently. In the 7 day trial described above, it is anticipated that there will be a break for all at least every 90 minutes.

22. The trial is due to take place in 3-4 weeks, subject to listing. The judge said that it was likely the case would get on despite the uncertainty because there are judges who have capacity because of the adjournment of other matters.

Conclusion

23. The systems are standing up reasonably well and virtual hearings have operated perhaps surprisingly efficiently so far. There may have been an expectation that most hearings would be adjourned given the crisis and lockdown, but it seems as though many judges and courts are attempting to hear matters virtually where they can and where it is fair to do so .

This paper is made available for educational purposes only. The views expressed in it are those of the author. The contents of this paper do not constitute legal advice and should not be relied on as such advice. The author and St John’s Chambers accept no responsibility for the continuing accuracy of the contents.

Download PDF here: Message for Circuit and District Judges sitting in Civil and Family

Charlie Newington-Bridges
21 April 2020
[email protected]
St John’s Chambers

[1] The obvious exceptions include some possession hearings for which see the new Practice Direction 51Z – Stay of Possession Proceedings, Coronavirus