In many areas we have seen the Court and Tribunal System move very quickly in moving hearings to remote technology. Landmark barristers have had plenty of experiences of remote hearings this week which they share with us along with some tips along the way. We have managed to cover the Court of Appeal, Administrative Court (including the Planning Court), the Technology and Construction Court, the Upper Tribunal (Lands Chamber) and the FTT (SEND).
In addition, please read this very interesting article about the gulf between the experiences of lawyers and lay people with remote hearings. We consider it of the utmost importance to ensure that lay people feel fully included in these hearings, and that all persons involved realise that for the individual concerned, there may be a whole range of different considerations to be borne in mind.
Court of Appeal
However, Hafsah Masood appeared for half day hearing before two Lord Justices where there was some urgency and therefore adjourning was not an option. The Court used Skype for Business:
“There were a few hiccups with setting up a SfB “meeting” for the hearing (this was the responsibility of counsel – principally Appellant’s counsel – and was ably handled by the practice team). One of the Lord Justices initially had problems with his audio, which caused a short delay, but otherwise the hearing went reasonably smoothly. Both the Lord Justices and counsel were visible on camera, but solicitors in attendance were not. The hearing followed the usual order of submissions, with the Court intervening as and when they saw fit. We were told by the Lord Justices at the start of the hearing that they would be exercising a degree of restraint, in recognition of the practical difficulties of remote communication. I was still asked some difficult questions, however!
I was using a laptop and found I had to lean in reasonably closely in order for them to be able to hear me clearly, but that may just be an issue with my setup. Taking instructions from my solicitor also proved a challenge, as it meant I had to keep one eye on emails while making submissions. I am sure there is a better way of doing it.”
Administrative and Planning Court
“Appeared today in one of the first remote substantive hearings in the Planning Court, before Dove J. It was carried out as a telephone hearing, and was recorded in court by a court associate. Approximately 13 people on the call.
The hearing went smoothly and ultimately felt no different from a traditional day out in court. A few tips/lessons learned:
- Ensure everyone in your team has an electronic copy of the bundle (and authorities bundle).
- Set up a group chat for discussion during the hearing. We used Skype chat. Being able to clarify points, take instructions etc as a team and without having to pass (often indecipherable) post-it notes back and forth is a significant advantage of remote hearings.
- Dial in at least 10 minutes before the hearing starts, to identify any technical issues early.
- There were a few audio problems at the start (entirely my fault!). Check your mobile phone has signal in all rooms in your house, and ideally use a landline. These issues were quickly identified by the Judge and other parties, and didn’t result in any submissions being lost.
- Ensure you have the contact details for the Judge’s clerk in case any documents that need to be passed to the Judge in the course of the hearing.”
You may also have seen the detailed account from Christopher Katkowski QC and Kate Olley from Wednesday of their judicial review renewal hearing by telephone. They noted the useful ability of sharing documents:
“We felt that the technology served the proceedings very well, and were particularly impressed with the ability to click the ‘share’ button at the bottom of the screen which allows the speaker to choose a document and display that on the screen for all to see at once. This worked remarkably well in allowing everyone in the hearing to focus on the same document together, and overcame the problem of the hard copy of the authorities bundle not having made its way to the judge in advance of the hearing. With a touch screen, it is also possible in this way to zoom into the relevant part of the document. It strikes us that this facility could actually make a hearing feel more inclusive for a lay client, who may possibly in the usual event feel lost at some points when Counsel and the judge are dealing with the finer points of technical documents or passages in the authorities.”
Galina Ward also had a renewal hearing on Wednesday, although this one by telephone:
“I did an OPH in the Administrative Court on Wednesday by telephone. It went fairly smoothly, save for people repeatedly joining as the judge was doing her introduction, and my opponent’s daughter loudly announcing outside her study door that she needed a wee. The case itself was about as suitable for a telephone hearing as it could get: legal points only, clearly defined on paper, experienced counsel on both sides. [However], the listing was pretty chaotic, from insisting on Monday that we had to attend in person, to not responding to my opponent’s update that she was now in self-isolation, to not actually confirming whether we were going ahead at all and if so how until 4pm on Tuesday – all of that is understandable this week, hopefully smoothed out by next week.”
Technology and Construction Court
Things did not go altogether smoothly in the TCC where Simon Allison was dealing with CCMC in a property case:
“The court made contact the day before and all parties (4) agreed to the matter proceeding by telephone. A call was set up with BT legal conferencing.
Unfortunately, BT never set up the call and despite solicitors calling BT, even after 1.5 hours they had not managed to get through to anyone. They seem to be completely overwhelmed. Reliance on BT therefore seems unwise. Eventually, at 3.30pm (2pm hrg) the Judge via her clerks at Wilberforce set up a call via ‘Zoom’ that worked flawlessly and the hearing proceeded. The usual difficulty with telephone hearings pertained of course (principally, the fact that the court file was incomplete as was the hearing bundle…) – illustrating the need for practitioners and their instructing solicitors to be even more diligent about timely preparation…”
Upper Tribunal (Lands Chamber)
“I am now a veteran – having appeared at my first skype hearing this morning. It went very smoothly. The format seemed to encourage concise and focussed submissions. There was no live evidence. It was legal argument before 2 tribunal members (including the President). There was plenty of exchanges between the Tribunal and barristers – all easy to follow with no perceptible delay. The hearing was attended by a total of 14 people – those with non speaking parts attended by audio only and stayed muted . All very workable, well organised by the Tribunal and user friendly to part in. Strange feeling to put my suit on and then not leave the house!”
FTT (SEND) Tribunal
Leon Glenister had two SEN hearings this week, one by telephone and one by video:
“The video hearing was by the Common Video Platform. It worked well, showing everyone who is in the call, with the microphone allowing only one or two people to speak at a time, whose image gets larger when they speak. A few observations which applied to both types of remote hearing:
(a) The platform works best where one person speaks at a time. There is therefore less discussion between advocates, the Tribunal and witnesses. The format necessitated that the Tribunal each ask their questions on a particular issue to a particular witness, and then each advocate. This wasn’t a problem though.
(b) You don’t get to speak to your witnesses before the hearing or in adjournments. Therefore it is important to have a conference before the hearing, and to have a means to communicate with your witnesses during the day either on a live chat or simply an email chain.
(c) The Tribunal are aware of the difficulties witnesses may have in attending and were willing to accommodate. Remote hearings make it easier for witnesses to attend for only part of the day.”
Carine Patry also had two SEN hearings this week, both by video conference:
“Like Leon, the video hearings worked well, showing everyone on the call, and the microphone only allows one or two people to speak at once. A few observations:
(a) Do mute your microphone while you aren’t speaking. This will minimise the noise being heard overall: one witness clearly had a train line near her home, and every few minutes a train noise would be heard. Once she had muted her microphone, this was far less annoying for everyone.
(b) The ‘chat’ box in the bottom left hand corner is really helpful when coming up with wording, for example, if you are trying to agree new wording in a Working Document. Type the proposed text into the chat box and everyone can see it. Much easier than trying to read it out for everyone.
(c) At the start of my hearing, there was one person on the call who should not have been on the call at all, and who was unable to leave, but the Judge quickly asked for video support and a video support technician arrived and removed him from the call. So there is technical support in place – don’t be afraid to ask for it.
(d) My top tip is to have a second screen at home. This allows you to browse documents on your second screen whilst still being able to see everyone on the call. I couldn’t manage without this now, and it has really meant that I have cut down almost completely on printing.”
David Lock QC recollects an experience from the past:
“As a result of doing medical treatment cases I am very used to seeking out of hours orders from High Court Judges over the telephone and at short notice.
I once sought an urgent order, and during the initial call I noted some strange gurgling type sounds in the background – which I ignored. The Judge asked me to end the call, inform the NHS Trust he had granted the order and then he said his clerk would call back in 10 minutes to resolve the precise terms of the order.
I duly did so and awaited the call – and when it happened the Judge’s first words were “Ah…. Now that I am out of the bath ….”