Diary of a Virtual Barrister, by Carwyn Cox

Published: 30/03/2020 | News

We are still in the early stages of these new ways of working and developments are taking place on a daily basis.  So far, the Courts have taken a largely similar approach to hearings, with minor differences by area, as can be seen from the updates that have been provided on our website and social media platforms.  The latest development sees core courts identified and remaining open for hearings in person, though only for essential cases.  I suspect that the vast majority of cases will not fall into that category, and that remote hearings will be the new norm for a while.  How many trials will take place remotely during this time remains to be seen.

There is no doubt that the profession has moved swiftly. Colleagues at Farrar’s Building have carried out JSM’s remotely, and video hearings have taken place.  Social media is also littered with examples of cases progressing by alternative methods.

The purpose of this note is to simply provide readers with my experience of remote hearings so far for the week commencing 22nd March 2020.  I have had three hearings, all by telephone.  I make it clear, that this is merely my experience and I am commenting on the process of the hearing not the cases themselves.  

On Monday I had an application heard in Manchester.  Looking at the lists for Manchester there were a large number of telephone hearings taking place on Monday.  Whereas normally telephone hearings start with a call from the operator asking you to confirm who you are, who you act for and if you are Counsel or a Solicitor, on this occasion I received a phone call from the provider with an automated voice asking me to press a number and I was then joined to the conference.  My opponent had the same experience.  We then waited until an operator did join the line and told us that there would be a delay due to the high volume of calls that were being managed that morning.  There was a 15 minute delay in being put through to the Judge.  Once put through, the hearing proceeded in the usual way.

Tuesday was a CCMC.  This did not go well.  My opponent and I had spoken the day before.  We had the same experience as above in joining the conference.  We patiently waited for the Judge to join the call, but with no joy.  After 45 minutes of waiting, the hearing was abandoned.  On the positive side, my opponent and I managed to agree an order so that the claim could progress.  On the negative side, the case is now proceeding without budgets set for the parties.  There will have to be a further hearing to budget the cases, and we do not know if the order has been approved.  There is therefore some uncertainty with this case.  I have not named the Court in this example, as it would be unfair to do so without knowing the exact reason why we were not able to have the hearing. 

Wednesday was a PTR heard in Winchester County Court.  This ran smoothly.  Again, my opponent and I had constructive discussions before the hearing and had an agreed order to present to the Judge.  The hearing proceeded as what was normal in that the operator called and confirmed our identities.  There was a minor difficulty in connecting my opponent, but that was all.  The Judge joined and we were able to complete the PTR.    Whilst we had agreed directions setting out adjournments, of note was the fact that the trial listed for 3 days in May was adjourned until after mid-August. The pre-trial settlement hearing listed for early April was adjourned until after mid-May.  This may give an indication of the timeframes within which the Courts are trying to manage their cases going forwards.  

As can be seen from the above, on the whole the Courts are functioning, but only really in terms of trying to triage the essential from the non-essential and to clear as much as can be cleared from the lists remotely.  I  get the impression that the Courts are rightly focussing on being able to manage their resources as staff levels and availability of the judiciary shrink, as well as ensuring that the Courts are available for those who need them the most.  It seems to me that if there are to be a number of remote hearings at any one time in the Courts that are sitting then the systems will need to cope.  As can be seen from the example above, when the technology fails then cases cannot be fully effective.  It will be interesting to see how things develop over the next few weeks.