A nice cold pint in The Winchester

Take car. Go to mum’s. Kill Phil, grab Liz, go to the Winchester, have a nice cold pint, and wait for all of this to blow over. How’s that for a slice of fried gold?

-Shaun (of the Dead)

In the last 6 weeks credit hire trials, whether on the Fast or Multi-track, have been adjourned en masse.

This is not because the county court judiciary are bunkered down in the pub, waiting for the current public health emergency to blow over. Far from it. Instead they are working usually from home, dealing with the urgent and time sensitive family cases and anti-social behaviour cases without files and without administrative support.

The county court, scarcely overstaffed and bursting with resources before the emergency, is now running at a much lower capacity.

At the beginning of the lock down, I wondered about the possibility for a mass switching of hearings to Skype for business, including contested witness actions such as a Fast Track trial.

With a gleam in my eye, I contemplated the enticing prospect of not having to get the early morning train to a far flung court, in order to run through familiar arguments of need, duration and rate, for the umpteenth time but instead, taking my place before the camera at 8.55 before embarking upon an exercise in virtual justice.

With one exception, which I understand took place in Manchester, such experiments in video trials have proved a failure.

Lack of training, lack of support, ancient tech, lack of a stable internet connection, problems with bundles and parties talking over each other, means that the county court judiciary, even if they had the time and capacity, do not regard this as a workable option for fast track trials.

Not all cases have been adjourned immediately, instead there is a pattern of rolling review.

Cases remain in the list for up to a week before the hearing date, as there is a belief that this facilitates settlement.

The court service in a flurry of excitement is rolling out its Cloud Video Platform, which relies on Kinley technology. Make no mistake about it, this is primarily to facilitate the criminal justice system. It is however, intended to extend it to family and civil hearings. But not, as I understand matters, trials.

Indeed the latest pronouncements of the Lord Chief Justice indicate that active consideration is being given to holding jury trials in lecture theatres or similar cavernous spaces. Perhaps with 7 jurors, instead of 12.  Or expanding the scope for trial by judge alone, though given the difference in acquittal rates between summary and jury trials, you’d probably not want to give up your right to a jury trial, if you can help it.

Could credit hire trials ever work remotely by video link as a new “normal” though, if technological and training problems could be overcome, principally through the provision of greater resources?

Having considered the matter very carefully, I think that the answer is probably “no”.

First, one has to consider the nature of the dispute. In commercial litigation there is usually a wealth of contemporaneous documentation, often too much of it, which email by email documents the evolution of a dispute and forms the best evidence for a judge to consider when formulating her conclusions upon a case. It is for this reason that High Court judges are often sceptical about the length and worth of witness statements in commercial litigation, which too often are simply a commentary on contemporaneous documentation. But there are rarely any documents in a credit hire trial which show for example, if an indicator was flashing or not, or what a car’s speed was, or what precautions a driver took before undertaking a maneuver.

Secondly, the presence of admitted facts and contemporaneous documents in such litigation facilitates the making of statements such as this by Leggatt J (as he then was) in  Gestmin SGPS SA v Credit Suisse (UK) Ltd at paragraph 22:

…the best approach for a judge to adopt…is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose-though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

But in credit hire cases, particularly where issues of fraud or dishonesty are raised, body language, demeanour, consistency, attitude and the ability to put a witness under pressure in cross examination are all lost when a case is heard remotely. Not all the facts will be in the documents, and there may be no admissions at all. Moreover a witness dialing in remotely can always pretend to lose the connection, if things start to get a bit sticky.  It may be that there is more scope to take into account the documentary evidence relevant to quantum and give it greater weight, but very rarely is this a complete answer to questions of people’s means, particularly if they largely deal in cash.

So what is the answer to moving forward credit hire claims in the next two months?

Well some of those will settle anyway.

For the rest I detect no enthusiasm for a wide spread system of ADR, such as arbitration, to dispose of credit hire claims. Whether that might change as the emergency continues, is an interesting question.

But it may be that to all intents and purposes, for the next 6 weeks or so, the industry as a whole, might as well bunker down and wait for this to blow over.

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