“My Lord, you’re on mute” – the rise of virtual hearings in civil proceedings

JUNIOR LAWYERS DIVISION

“My Lord, you’re on mute” – the rise of virtual hearings in civil proceedings

“You’re on mute”, “I can’t hear you”, “I think there’s a slight delay”.

For most of us, these phrases became the soundtrack of 2020, with Zoom, Microsoft Teams, Google Hangouts and other video conferencing platforms becoming central to both our working and personal lives.

And in spite of their traditional preference for hard copies, the Courts too have had to jump on the metaphorical virtual bandwagon. Shortly after the UK lockdown began in March 2020, a new CPR practice direction – Practice Direction 51Y – Video or Audio Hearings during Coronavirus Pandemic – quickly came into force and many pre-listed civil hearings were swiftly moved online.

As a commercial litigator, I have had experience with several virtual hearings over the last 10 months. Whilst the format of the hearing itself varies between the different Courts, I’ve come to believe that there a number of advantages with remote hearings in general.

For a start (and it might be an obvious one), conducting a hearing remotely makes it much easier to find a mutually convenient hearing date for the parties and their legal representatives. Clients, counsel, experts and other witnesses can in theory join the hearing from wherever they are (even abroad), which minimises the need for endless lists of ‘dates to avoid’, and probably makes the Court listing office’s job much easier. There is also the obvious potential for cost savings, as ‘attending’ a hearing from home avoids travel expenses and, in the case of our in-house lawyer clients, extensive time away from the business. The ‘virtual’ format may also be seen to support the long established principle of ‘open justice’; streaming the proceedings online means any member of the public can easily ‘attend’ hearings of significant public interest – for example hearings for the recent Financial Conduct Authority Business Interruption insurance test case – from the comfort of their own homes. Virtual hearings may also provide a less intimidating environment for those giving witness evidence, particularly if it is their first-time attending court proceedings. Finally, the absence of printing and travel to and from the hearing arguably makes virtual hearings much more environmentally friendly than the traditional ‘in person’ format.

However, not everyone is in favour of the move to ‘virtual’ and there are a few disadvantages to remote hearings. The most obvious one is the inevitable ‘technical issues’; hearings can be disrupted and considerable time and costs wasted when, for example, one of the parties’ counsel has an unreliable internet connection. On top of this some worry that, for more confidential matters, an online format may make it easier for documents to be leaked or for someone to illegally record the proceedings. Some simply miss the ‘in person’ experience, and the opportunities it provides to gauge reactions and read witnesses’ or opposing counsel’s body language. Many have had to adapt to a new style of advocacy.

If your client does find themselves faced with the prospect of a virtual hearing, here are a few practical tips that I have gleaned over the last few months:

1. If you have a choice (often it will be up to the Court to decide), choose the appropriate video conferencing platform wisely. Consider what the parties will need – for example, will separate breakout rooms be helpful? Whatever platform is being used, check that the whole team (particularly Counsel) have the appropriate technology in place to access the hearing and most importantly, that they have a reliable internet connection!

2. Think ahead of time about how you will communicate with Counsel and your client. Setting up a WhatsApp group is often helpful as it makes it easier for your client to respond to developments during the hearing in real time and give instructions quickly.

3. Decide whether you will need an electronic or ‘e-bundle’. Whilst many lawyers might breathe a sigh of relief when they learn that a hard copy bundle is not required, e-bundles can still be very fiddly You must make sure the e-bundle fits the specific requirements for that particular judge or court – for example, is there a preferred convention for file names, and should the bundle be sent by email or secure data room. For larger disputes, there are companies that can assist in putting Court-compliant e-bundles together for you. You might even consider that a PDF bundle is sufficient, rather than a properly indexed ‘e-bundle’.

After the few initial teething problems, it appears that the Courts, lawyers and clients alike have quickly adapted to litigating ‘remotely’. But have hearings gone virtual for good?

Ultimately, the choice of whether a civil hearing will take place virtually or ‘in person’ will be a matter for the Court, perhaps taking into account the preferences of the litigating parties. In the case of arbitration, where there is far more flexibility, it is possible that we may see requirements for a virtual hearing (or otherwise) built in at the contract stage, where arbitration clauses may be drafted to state the parties’ preferences, should matters fall into dispute. Everyone will have their own opinion, and for some, the ‘in person’ experience will always be preferable. However, given the numerous advantages of virtual hearings, it seems likely that, in some form or another, they are here to stay. ■

Henrietta Richards

Associate, Commercial Litigation

Farrer & Co.