The Fourth Dimension

Are credit hire trials about to stage a renaissance?

The Designated Civil Judge in Birmingham has issued guidance as follows:

2. Trials of Fast Track cases

Fast Track trials listed in April and May were vacated. It is intended to return to hearing Fast Track trials remotely from 1 June 2020, and it may be possible to bring that date forward for some cases where trials have been vacated. The Court will contact parties to make inquiries as to effectiveness, and as to whether the trial can be heard remotely. The Court will give particular consideration to cases where the parties have made representations as to mode of trial in response to orders made vacating earlier trial dates.

3. Trials of Fast Track cases from 1 June 2020

These trials remain in the list and the Court will try them by video. The parties should ensure that any negotiations towards settlement are conducted sooner rather than later, and that the Court is informed as soon as a case settles.  

The Court will contact the parties by telephone to confirm that the trial is effective approximately 7 days before the date fixed for trial. You will be asked to confirm that the case is suitable for a video hearing, and if not to identify why that is. The case will then be considered by a Judge.

You will also be asked to provide contact details (telephone and email) for all those who will be attending the trial.

The trial bundle should be delivered to the Court no later than 5 days before the trial date in both hard copy, and in electronic form.

The hearing will be conducted remotely by video. You will be provided with the relevant instructions by the Court and/or the video provider.

The Designated Civil Judge in Liverpool has issued guidance as follows:

More on Trials. I am giving consideration in Liverpool to the trial lists going forward, and although the default position may well remain that they are vacated, the possibility exists that some cases could still be dealt with remotely by Skype for Business and this is something I would like to encourage in appropriate cases. The courts and judiciary have become more familiar with the technology which is being used significantly in the family and criminal jurisdictions, and there is no reason why in a suitable case the same cannot apply in civil work, although we have the disadvantage of no e-filing. Certainly, I intend that contested appeals should be dealt with this way, although applications for oral permission will probably continue to be dealt with by telephone. Accordingly, if you have a trial coming up (after the end of April) which you consider may be suitable for a Skype hearing, the court, if it has not already directed such a hearing, may be sympathetic to this course. Suitable examples might be those cases where there is a limited number of witnesses (or none) or factual dispute, meaning that evaluation of live testimony is less important, where there are legal points only, or where an issue turns on expert evidence which can be properly managed by the video process. It would not be suitable if there are litigants in person involved. Please bear in mind that with most solicitors’ offices closed, some thought should be given to how witnesses can attend to give evidence, particularly if they do not have immediate access to the technology. It is also important that the documents are well managed, either with trial bundles prepared well in advance, or short electronic bundles to which everybody has easy access. Further, trying out the technology in advance is advisable. Unless the court can be assured in relation to all these aspects, it is unlikely that a Skype trial will be approved.

The Designated Civil Judge in Manchester has issued guidance as follows:

8. The court requires the parties to use their best endeavours to agree a mechanism to allow trial listed to proceed by video hearing or telephone hearing during the period in which the restrictions are in force. As restrictions ease, the range of options open to the parties will widen. As set out above, parties will be encouraged to consider if their trial could take place on a partly remote basis, or even in open court.

9. Whether the Case is Suitable for remote or partly remote determination

The parties are encouraged to agree how a trial should proceed. The parties are likely to have the best handle on whether a trial can be heard remotely, partly by remote means or in open court. The view of the parties is an important factor for the Court. But, it is not determinative.

10. To assist practitioners, the following additional guidance is given as to when a trial might be heard on a fully remote basis:

1. Decisions as to (i) which cases can proceed by way of a fully remote hearing, and (ii) how a remote hearing should proceed are always a matter for the trial judge.

Those decisions will take into account all of the circumstances, including:

1.1. The views of the parties

1.2. The urgency of the remedy sought
If the remedy sought is urgent, such as an injunction or an interim payment, the case is more likely to be heard remotely.

1.3. Litigants in person
Generally cases involving litigants in person will not be suitable for remote hearing, although the views of any litigant in person will always be considered.

1.4. Interpreter or intermediary
If one or more witness requires the assistance of an interpreter or intermediary, the hearing is unlikely to be able to proceed remotely.

1.5. The number of witnesses
The larger the number of witnesses the less likely a remote hearing is to take place.

1.6. Nature of the allegations
Cases in which there is an allegation of fundamental dishonesty, fraud or similar are unlikely to be suitable for a remote hearing.

1.7. Real evidence
It is unlikely that it would be fair to proceed in a case which calls for the examination of real evidence by the court.

1.8. Complexity
The more straightforward the issues in dispute are, the more likely that it is that a fair remote trial will be possible.

1.9. Technological competence and access to appropriate devices
If a party or a witness does not have access to an appropriate device which would enable them to participate effectively then the hearing is unlikely to go ahead.

11. The above guide will influence decisions about the part remote hearing of a trial, whether it can be heard in open court or whether it should be adjourned. A trial involving legal complexity or the need to examine real evidence or a trial which involves more than a handful of witnesses might not be suitable for a remote hearing, but eminently suited a partly remote hearing. Most cases will be suitable for open court hearings with no remote element, these might be reserved for trials involving litigants in person, or longer trials where there is a degree of urgency. The parties should be pro-active, communicate with each other and inform the court by complying with the appropriate order.

Perusing this guidance one is struck by the disparity in approach: it is full steam ahead in Birmingham, whereas the guidance from Manchester could be viewed as a long list of reasons as to why trials should not take place remotely.  However there may be extraneous factors at work here not noted in the guidance: some judges in some courts have realised that if they list the trials that have been adjourned or vacated, there is an excellent prospect that the parties will be galvanised into action to settle the case thus removing the case from the list, and the backlog of work which is building up. They don’t actually expect the trials that are listed to be effective. But suppose such a trial does take place, what considerations are in play as to how it might be successfully managed?

I have started to undertake hearings remotely by video: last week I argued an appeal in the County Court by Skype for Business. It worked reasonably well.

There were clear differences between attending court and using a video link, which need to be taken on board.

The first is that using a screen, and staring at it for 3.5 hours continuously is exhausting.  Next time I will suggest at the outset that we have a mid morning comfort break.

The second is the increased emphasis on written advocacy, rather than relying upon oral fireworks. The judge had an e-appeal bundle and an e-authorities bundle. She had three skeleton arguments: I prepared my appeal skeleton, and then I prepared a rebuttal skeleton, so that the judge would have all of the points in written form to make it easier. I deliberately drafted the skeleton arguments as a form of written submission, cutting and pasting the crucial paragraphs from the authorities into the skeletons, to minimise the need to turn to other documents.

The third is that when making submissions, brevity and succinctness are key. Body language, manner of delivery and eye contact are effectively neutralised. The power of content is everything,and content needs to be short and punchy. Perhaps along the lines of “…all the issues in the case boil down to two simple questions, x and y.” or “The three reasons why you should decide x in my clients favour are….” and in turn “I can give you five reasons why my opponent is wrong. They are….”

That is of course all well and good for submission based hearings, concerning only the lawyers. Trials are different. What about witnesses ?

Well, at various times over the last 20 years, I’ve undertaken trials, where a number of witnesses have given evidence remotely: usually because they lived overseas and it would be a waste of time and money to bring them to court for 90 minutes of evidence. One could take the view that all that has to be done is scale things up.

But I would suggest its not necessarily so simple. The real difficulty is not the concept of giving evidence remotely: it is the practicality. Providing the witness with appropriate technology to given evidence. Ensuring that everyone has a stable internet connection. That the witness has a bundle and they know how to refer to it.

And all of these are real problems, when such steps have to be taken, in the current situation, with ad hoc solutions.

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