Much has been written about the need to
ensure that civil litigation continues to progress during the Covid-19
crisis. By now, most practitioners will
have had some experience of using an on-line platform for work purposes (such
as ZOOM or Skype). Generally, these
platforms work well for certain types of business between professionals, such
as basic meetings or conferences. In
fact, I have conducted a 2-day, multi-party, disciplinary tribunal via ZOOM,
without any major difficulties. Despite
the fact that this hearing involved cross-examination of several witnesses in
various locations across the UK, the technology and multitude of WIFI
connections managed to hold together.
Much praise should go to the numerous participants involved, who took
the time and effort to ensure that no hitches arose.
Unfortunately, my positive impression of virtual hearings has been eroded following the collapse of an RTA trial last week, where I was instructed to represent the Second Defendant. This hearing was not effective, for a variety of seemingly predictable reasons:
- The claim had originally been listed for an in-person, 1-day trial, at the Central London County Court, to take place on Wednesday 15 April 2020. The claim involved three parties and the hearing would involve cross-examination of three factual witnesses. The claim involved no issues of particular urgency.
- Two weeks prior to the hearing, the parties sent a signed consent order to the Court, requesting that the matter be adjourned, due to the Covid-19 outbreak. No response was received from the Court, despite chasers. It appears that London Central County Court is no longer accepting telephone enquiries.
- On Monday 6 April 2020, the Court made an order of its own volition, directing that the hearing would go ahead, via ‘Skype for Business’. The Claimant was ordered to arrange the virtual meeting and send email invites to all the participants by Thursday 9 April 2020.
- The order also directed that the parties ‘must’ hold a dry-run test hearing 5-days prior to the trial, to ensure that the technology worked (i.e. by Friday 10 April 2020).
- My instructing solicitor received an electronic copy of the order from the Claimant on the morning of Thursday 9 April 2020. The Court did send the order directly to my instructing solicitor, albeit it was sent by post to her office (in circumstances where she was working from home).
- On Thursday 9 April 2020, the Claimant’s solicitor confirmed that they did not have access to Skype for Business. Despite further communications, no meeting invites were sent and the parties were unable to hold the dry run test hearing, as per the direction given by the Court. This was perhaps unsurprising given that the order left only a few hours for the parties to arrange this, prior to the Easter Bank Holiday – falling over Friday 10 April and Monday 13 April 2020.
- Upon further investigation, it became apparent that the Skype for Business desktop application required the meeting organiser (i.e. the Claimant) to hold ‘a sign-in address and password from an organization that has a Skype for Business or Lync license…’ The Claimant’s solicitor did not have such an account, nor could he obtain one whilst working remotely from home.
- In any event, when ‘Googling’ Skype for Business it is confirmed that this has been replaced by ‘Microsoft Teams’.
- On Tuesday 14 April 2020, the Claimant had not taken any further steps to arrange a virtual meeting. Eventually, the First Defendant’s Solicitor confirmed that a ‘Skype’ meeting would be arranged (i.e. via the conventional Skype application) and sent telephone dial-in details to all the participants, including the Court. Later that day, the Court confirmed it had received the dial-in details and the hearing would be going ahead.
- On Wednesday 15 April 2020, the hearing was due to take place. It quickly became apparent that it would not be effective:
- Upon dialling into the hearing via Skype, it became apparent that the hearing was audio only, such that none of the participants could see each other. The audio quality was poor and there was a delay on the line. This would make effective cross-examination almost impossible.
- The Court order directed that all participants should be sent a copy of the electronic bundle. No regard appears to have been paid to the fact that not all participants would have the hardware or software to access such a voluminous file. Making arrangements for the witnesses to access the bundle were complicated by time constraints and the need to adhere to social distancing measures.
- The Judge failed to dial into the hearing,
despite the attendees waiting.
- The parties’ instructing solicitors again tried
to contact the Court but no responses were received.
- The WIFI connection of one of the witnesses
broke down prior to the hearing. His
mobile phone data limit had been reached.
His provider refused to upgrade his package, given he was in arrears to
them already. As such, he was unable to
dial into the call.
After waiting for some time to hear from the Judge, the parties’ representatives agreed that a joint email should be sent to the Court confirming that they had all agreed that the hearing should be adjourned, subject to contrary instruction, and that the participants would remain available for the remainder of the day, if required. Nothing has been heard from the Court since.
This failed attempt at conducting a
trial remotely should serve as a salutary lesson to practitioners. Whilst it is right that hearings should
proceed if reasonably practicable, the Courts should ensure that all
participants are given sufficient time to allow compliance with remote hearing
directions. Such directions cannot
assume that all participants have sufficient connectivity and access to
appropriate technology within their homes (particularly lay people).
Aidan O’Brien is a member of Farrar’s Building specialising in Clinical Negligence, Personal Injury, Insurance and Probate matters. He also sits as a Judicial Officer for the Rugby Football Union and is a Senior Advisor at Alpha Academic Appeals. Aidan regularly conducts hearings and consultations remotely. For more information, please contact the Farrar’s Building Clerking Team.