COMBAR has recently (12 May 2020) published a Guidance Note on Remote Hearings (“the Guidance”), containing practical advice for those undertaking remote hearings in the Commercial Court. The Guidance, available here, is to be read alongside both the Commercial Court Guide, as well as the current Civil Justice Protocol Regarding Remote Hearings. It is intended to be kept under review and may be updated in due course.
As the Civil Justice Protocol observes at §12: “It will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings.”
It is accordingly trials and other hearings with witnesses that throw up the most significant challenges to remote proceedings. As such, of particular benefit within the Guidance is the specimen PTR checklist appended to it, aligned with the suggestion in the Guidance that if there is not already a direction for a PTR in advance of an upcoming trial, it would be prudent for one to be listed. Management of remote hearings raise sufficient practical and logistical issues that warrant the parties and the Court addressing these collectively at a PTR (§12).
Two particular prudent suggestions contained within the Guidance that should be addressed well in advance of the hearing, itself, are: (1) testing of any applicable video-conferencing platform (§9); and (2) deciding whether bundles are to be prepared electronically, in hard copy, or both (§§10-11).
Addressing these factors (and those listed further above) at an earlier stage is more likely to give the Court confidence at a PTR that the proceedings can be properly and effectively managed remotely.
The Guidance goes on to address some of these issues, including:
- Video-conferencing technology: the Guidance lists (§§18-19) the various platforms used by HMCTS, as well as other commercial providers that are available. Members of Chambers’ experience is that – while cost may be a factor – an investment in a commercial platform can be worthwhile to ensure hearings proceed smoothly. Benefits can include more stable connections, as well as a ‘concierge’ who remains on-hand to deal with any issues that arise during the course of the remote hearing. In addition to the providers listed at §§18-19 of the Guidance, members have also had positive experiences using ‘InvolveCloud’ (operated by Vodafone and a standard video-link provider in the Commercial Court).
- Documents: the Guidance lays out a number of considerations applicable to bundles (§§26-32), suggesting that electronic bundles are likely to be the norm for remote hearings. While that is likely to be true in many circumstances, members of chambers’ experience is that – especially for those used to working with hard copy materials – the Court (and counsel) may still wish to use hard copies alongside any electronic bundle. In those circumstances, the Guidance sensibly proposes that pagination of hard copies match identically that in any electronic bundle (for further guidance on electronic bundles in these circumstances see In the Matter of TPS Investment (UK) Ltd (in administration) [2020] EWHC 1135 (Ch) at [2]-[5]). External document-management providers are available, especially if live transcription is to be used. Again, consideration ought to be given if transcription will require additional hardware to be provided to the Judge and respective parties. If so, the provider should be able to deliver any devices to users’ homes.
- Other considerations for the hearing: the Guidance also addresses (§§38-46) other practical issues particular to remote hearings, such as agreeing a protocol should technical issues arise (§41), as well as considering other responsibilities of participants that may bear on the Court’s sitting hours (§43). Another key consideration is the ability of counsel to take instructions during the hearing, in circumstances where they are not co-located with their instructing solicitors (§44). A separate channel of communication is suggested for these purposes (whether by email or a secure instant-messaging platform), and members of Chambers’ experience is that the Court is understandably accommodating in giving parties the opportunity to take instructions (e.g. over an adjournment, or even during the hearing) in the course of remote proceedings. The means by which hearings are considered ‘public’ is often the availability of access by members of the media or public to witness the hearing, as publicised via the daily cause list. To that end, parties should ensure that cause lists are accurate, direct those who wish to view proceedings to the appropriate contact, and liaise with the listing office if any details require amendment.
Video-link communications have been in use by the Court for a significant period of time (typically for witnesses), but it is the frequency and extent of the conduct of remote hearings in the present times which throw up unprecedented challenges. Some of those are foreseeable (and addressed in the Guidance); others less so, which require a flexible and adaptable approach by all parties.
14 May 2020
Members of 11KBW are regularly appearing in a wide range of hearings at all levels, and in all fora, using remote technology.
