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The Virtual Conduct of Litigation During Covid-19

OTC members have compiled a comprehensive guidance note on conducting court business remotely in response to the Covid-19 pandemic, including expected court etiquette and other practical tips.

There has been a flurry of uncertainty since the shut-down of courts following government guidance as a result of the COVID-19 pandemic.

OTC has received a number of queries about how disputes will be dealt with in the courts as well as how alternative dispute resolution can proceed. In fact, many members of chambers have already appeared in remote hearings during the pandemic or have provided advice.

There is not a single ‘off-the-shelf’ approach being taken by courts. Each jurisdiction (and indeed each individual court) will have specific requirements and the particular guidance should be read closely. There are various signposts in this article and the full Guidance Note directing readers to the particular jurisdiction on which they seek information. That said, currently, the Family Division’s, in particular MacDonald J’s guidance is the most sophisticated and detailed. Even if a case is not a family law matter or proceeding in the family courts, that guidance should be given particular attention.

This article will be updated as the guidance inevitably changes and aims to provide a summary of the main guidance provided by courts in OTC’s key practice areas.

Download the full content, Conduct of Litigation During Covid-19 – Latest Guidance, for guidance on how to conduct round-table meetings, mediations and arbitrations. The document also provides practical guidance on conducting remote hearings and expected etiquette before remote tribunals.

Overarching Protocols and Guidance

  • The objective of the courts is to undertake as many hearings as possible remotely.
  • Hearings that cannot be heard by video or telephone and which cannot be delayed will be held in 157 priority court and tribunal buildings from 30 March 2020, except in exceptional circumstances. A tracker of these courts is available online.
  • A further 124 court and tribunal buildings remain closed to the public but open to HMCTS staff, the judiciary and other agencies. These staffed courts support video and telephone hearings.

New practice directions and protocol

There are three new practice directions. Full details can be found in our guidance:

Full details of a new protocol regarding Remote Hearings 26 March 2020 are also available in the Guidance Note.

Cloud Video Platform

A bespoke product is currently being tested by Her Majesty’s Courts and Tribunal Service – the ‘cloud video platform’ (‘CVP’). No particular software will be required to use it. HMCTS states that this platform will have increased capacity by next week.

Until the CVP is rolled out the courts are using a ‘Smörgåsbord’ (to use the term of MacDonald J) of ways to continue to provide access to justice and to continue with court business where possible.

Parties should pay close attention to the CVP. It is discussed in most of the guidance and appears to be the aspirational platform of all courts for the conduct of remote hearings.

The approach of each court

The full Guidance Note looks at approach of each court individually including:

Andrew Allen QC has also discussed the procedural propriety of electronic hearings here.

  • Employment Appeal Tribunal

Mediation and Roundtables

OTC members of chambers have already conducted roundtables and mediations on a virtual/remote basis

The full Guidance Note looks at the most popular platforms and lessons learned from activity so far.

Arbitration

OTC members of chambers have already conducted a commercial arbitration on a virtual/remote basis:

The full Guidance Note looks at the most popular platforms and lessons learned from activity so far.

Court Etiquette

The below is taken from MacDonald J’s ‘Remote Access Family Court’ (Annex 1, para 30) (discussed above) but we consider that the points will be generally applicable.

  • Professional decorum should be maintained at all times.
  • Advocates should dress as if they were attending court but advocates are not required to robe for any remote hearings.
  • Background visible on screen should be appropriate for a court hearing and adequately lit so faces can be seen.
  • Participants must ensure they will not be interrupted or distracted during the course of a hearing.
  • Participants should not move away from the screen without permission of the judge during the course of the remote hearing.
  • Usual restrictions on eating and drinking in a court room apply.
  • All reasonable steps must be taken to preserve the confidentiality of the proceedings.
  • Use of earphones is permitted and encouraged if it will assist in preserving the confidentiality of proceedings.
  • The judiciary and other advocates should be addressed as if they were in a physical courtroom.
  • It is not necessary to stand when the judge joins the hearing or when addressing the judge.

Practical Issues

HMCTS has produced a 3-page guide on joining court hearings by video call or phone, available here.

  • HMCTS guidance confirms that participants do not need Skype for Business to join Skype video conferences. However, they do need the free Skype meetings app.
  • Each participant will receive instructions and a link to click to join the hearing as a guest. Once users click on the link they should follow the browser’s instructions for installing the Skype Meetings app. At the time of the hearing users go to the Skype Meetings App sign-in page, enter their name and select ‘join’. HMCTS confirms that at the moment they only support Skype for Business for video conferencing.
  • Audio hearings
    • Normally take place via BT MeetMe
    • All parties will receive a notice of hearing containing joining instructions. These will include a request to provide the court with a preferred contact number by which participants can join the hearing.
    • A member of HMCTS staff will facilitate the joining of all parties to the hearing and will ensure it is recorded and stored appropriately.
  • Conversations between legal professionals and clients
    • Members of chambers have used Whatsapp, Telegram or other instant messenger services to communicate with the legal team. Having a separate platform helps to avoid committing faux-pas and messaging the wrong party or the judge.
    • The forthcoming CVP apparently does provide for private consultations.
  • Two screens are recommended – one for the hearing and one for notes.
    • Indeed a third might be recommended for the bundle.
  • Mute your microphone when you are not speaking – this is a recurring issue and has a serious impact on the smooth running of proceedings if not observed.
  • During the hearing you cannot ‘pass up’ extra authorities, where required. Members of chambers have found judges more amenable to looking at materials directly on Westlaw.
    • For the avoidance of stress, this should be clarified at the outset of any hearing.
  • Preparation of bundles does need to be done further in advance and more meticulously. It is not possible to just ‘slot’ pages into an electronic bundle.
    • There have been issues in the size of electronic files which have to be sent to judges and the court email servers. Liaising with the court clerks well in advance will assist in making the hearing and bundle organisation as straightforward as possible.
  • Think in advance about how the proceedings are to be recorded, particularly if the hearing is to be conducted by telephone and online recording is not an option.
    • Members of chambers have in this circumstance had a solicitor listening in to take a note, which is then sent to the judge for approval after the hearing.
  • Careful regard should be paid to the interests of the lay client and the impact remote hearings have on those. Issues of social and economic inequality can prevent lay clients participating in remote hearings and must be considered and dealt with well in advance of any hearing. It may be that an adjournment is necessary in order to maintain proper access to justice.
  • Do engage with the other side as early as possible to find out what their technological capacities are, particularly for their lay client. This may indicate practical limitations on what can realistically be achieved remotely.

Read the full guidance note here: Conduct of Litigation During Covid-19 – Latest Guidance.

Please contact David Smith on +44 (0)20 7427 4905 or Colin Bunyan on +44 (0)20 7427 4866 for further information and details of future events on this area of law.

Covid-19, Commercial during Covid-19, Commercial, News 9 Apr, 2020

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