Remote hearings and electronic bundles – reflections on the Lloyds GMP case

Practical tips for remote hearings and electronic bundles – Nicholas Hill reflects on a seven-day trial by Skype in the Lloyds GMP litigation.

Nicholas Hill recently acted, led by Andrew Short QC, and instructed by Ivan Walker of Walkers, for the Eighth Defendant in the second substantive trial in the Lloyds Banking Group Pension Trustees Limited GMP litigation. The 2018 Judgment [2018] EWHC 2839 (Ch) confirmed that pension scheme trustees are required to adjust non-GMP benefits to equalise overall scheme benefits. The proceedings earlier this month concern the impact of the equalisation obligation on transfers out. Judgment is awaited.

Nick sets out some practical tips and observations about the use and impact of technology adopted in the recent trial.

In the Lloyds litigation the case papers comprised a trial bundle of c. 7 files (if printed), an authorities bundle made up of c.135 case reports, primary and secondary legislation, textbooks etc, and c.450 pages of Written Arguments. Our team worked almost entirely without paper in preparing the case and during the trial over the first two weeks of May. The trial was streamed live on YouTube (embedded by Sparq).

Practical tips for virtual trials

• Check that your firm’s hosted system and/or security features will allow access to the hearing. At least two parties in the Lloyds litigation needed to engage with their information technology providers/support to obtain access to Skype and Ringcentral.

• Buy or borrow a second screen. If possible, buy or borrow a third screen. In Lloyds we had a full electronic bundle (using Opus 2) including a real-time transcript, Ringcentral (as a slave screen so that observers were able to see the documents being referred to in court), Skype (with the Judge and Leading Counsel generally on the screen at all times), Slack (for non-confidential virtual post-it notes), and, of course, notes. With sufficient screen space the set-up worked brilliantly but three, good sized, screens were required.

• Check your sound and lighting. Following the PTR we arranged for external microphones and re-positioned lights – this really did make a material difference. It doesn’t matter how good the advocacy is if it can’t be heard. Dark shadows distract from submissions being made.

• Arrange a test run of the technology. Arrange a second test run when the first test isn’t quite good enough. It is an inconvenience at that stage but has the potential to undermine your case at trial.

• Check your backdrop. I was recently told about a seminar where the (excellent) speaker had statues of two prancing horses behind him. The very fact that someone told me about the backdrop suggests it may have been a little distracting.

• Agree what technology is going to replace post-it notes. We found a combination of Slack for non-confidential (short) notes and email for more substantive (and confidential) notes worked very well indeed. The technology is less intrusive than passing a post-it note in open court and allowed our team to communicate effectively throughout the hearing.

• Agree what steps to take when the technology fails. The Lloyds case was run by Sparq who, in theory, would identify when any advocate lost connection and notify the Judge. In reality Junior Counsel was required to alert the Judge and the other parties to technology problems.

• Start the preparation of the electronic bundle as early as possible.

This last one is particularly important. The Opus 2 platform is excellent but to take advantage of what it offers it needs to be available early on in the case preparation process. The platform is reliable, intuitive (at least most of the time), and facilitates collaboration. In the Lloyds matter it was not the intention to use Opus 2 until shortly before trial (when the full impact of the Pandemic became clear) so we were never going to be in a position to exploit all of the features available but it still proved to be an excellent platform (particularly when, for example, adding material to the bundles as the trial progressed).

A few months earlier I used Opus 2 for a longer professional negligence trial. The problem in that case was that various parties underestimated the time required to agree, cleanse, and upload the data required for the bundle. This presented a real problem. We had multiple versions of marked up documents in hard copy, in PDF form, and (belatedly) on the Opus 2 platform. It meant we were not able to fully prepare the case (including Skeleton Arguments and cross-examination notes) by reference to the final bundle. Early engagement with Opus 2 and early adoption of the platform (or any technological platform being used) puts clients in the best possible position to succeed at trial and, notwithstanding the initial costs, it has the potential to reduce the overall costs bill (because documents will only need to be marked up once and, frankly, because it should bring some much needed focus to the content of the trial bundle).

Find out more

Nick practises in commercial litigation with a focus on pensions and financial services law. Recent work includes the Lloyds litigation, various professional negligence claims, indexation cases (including Ove Arup & Partners International ltd v Trustees of the Arup UK Pension Scheme [2020] EWHC 1064 (Ch)), rectification proceedings (including Colart International Holdings Ltd v Colart Pension Trustees Ltd and another [2019] EWHC 3081 (Ch)) and litigation involving the employer debt regime (PS Independent Trustees Ltd and another v China Shipping (UK) Agency Co Ltd and another [2019] EWHC 1222 (Ch)).

For further information please contact Nick’s Practice Director, Matt Sale, on matt.sale@outertemple.com or call 020 7427 4910.

Legal Blogs 26 May, 2020