Some thoughts on remote hearings from David Holland QC

The hearing was reasonably “substantial”. It was a 4 hour summary judgment application before a Deputy Master in the Chancery Division. The claim is for damages for fraudulent misrepresentation in a sum of over £6 million. There is a counterclaim for over £800K. There were over 2000 pages of documents and 650 pages of authorities. I was leading Ed Rowntree of Hardwicke and my opponent was David Nicholls from Landmark.

1. Overall the hearing worked very well. Given that there was no witness evidence, making and listening to submissions remotely did not seem that different from doing it face to face.
2. Skype is not as good as Zoom. The ChD insists on using Skype for Business. This is, I think, because they can record proceedings. To that end the Judge insisted on turning off the video facility so the hearing was conducted orally. My (admittedly brief) experience tells me that Zoom is better than Skype as the latter always appears to have problems. That was the case here. My opponent (one of the three people permitted to speak during the hearing) could not get his microphone to work through Skype despite trying though two different devices. As he is in the same chambers as me and as I had a Zoom conference with him the next day, I don’t think it was any problem at his end.
3. Prepare to be flexible and have other options ready. Having encountered the aforesaid problem, and having my opponent’s mobile number, we talked and then suggested to the Judge that my opponent ring the Judge on a direct telephone line. That is what happened. David made his submissions to the judge by telephone direct to the Judges desk and the rest of us listened in through the Judges Skype link. Despite being less than ideal, this actually worked.
4. The documents bundles need work. The documents bundles were prepared and lodged in accordance with the recent guidance. There were two problems. Firstly, the solicitors had (jointly) lodged an updated bundle which had not reached the Judge and he initially had a different set from everyone else. This was remedied fairly quickly. Secondly the Judge had difficulty accessing certain of the documents during the hearing. When I sought to draw his attention to one particular document within a large tab, it took him several minutes to actually reach it. Fortunately, despite the large number of documents in the bundle, the way the hearing panned out it was only necessary to direct him to comparatively few documents during submissions. Had this been a more “document heavy” hearing then I think there would have been many more difficulties. I had printed out hard copies of the bundles because I find it easier to work from and I imagine that there would have been more than a few “technical meltdowns” had I had to work from the e-bundles.
5. On the other hand, the authorities bundles were a revelation. Each party had (in breach of the guidance, I know) filed their own authorities bundle in PDF format. I had printed out all of my own authorities in hard copy. However, I found the PDF versions extremely easy to use. I eventually worked out how to search them by page number, highlight mark and flag them. Who knew? (Not me it turns out). I found that during the hearing I had no need to refer to the hard copies I had and was more than content to refer to the soft copies. Let’s face it, if I can work this out anyone can! I was so impressed that I have just downloaded (and more importantly paid for) Adobe Acrobat Pro DC. I will definitely be trying to use this type of PDF bundle for future hearings whether remote or otherwise.
6. A share screen function? Zoom has a “share screen” function which allows you effectively to display documents to the participants in the meeting in a separate screen. I do not think that this is available on Skype and, in any event, the court did not want to proceed visually, only orally. It would be a useful facility to be able to display a document to which you were referring orally.
7. Find a means of communicating separately with your solicitor and/or junior. The court has I think disabled any “chat” function on the Skype platform it uses. There is a chat function on Zoom which can be used for private chats. We used WhatsApp which I used on my phone. It was less than ideal. I have now downloaded WhatsApp onto my laptop and will try that next time.
8. I do not see why one cannot have witness actions tried remotely. There is a lot of guff talked about the importance of the trial judge hearing and seeing the witness and their demeanour whilst giving evidence. In fact, as I understand it, all the research shows that this is nonsense. The key indicators of the veracity of a witness’s testimony are not their demeanour while giving evidence or the hesitancy or otherwise of their delivery but whether their account of events: corresponds to the contemporaneous documents; is more probable given the other admitted facts. I have in fact cross-examined a witness over the telephone and that was not too bad. To that end I do not see why witness actions cannot be heard remotely, albeit the ChD will have to switch on the video facility.