Courts give guidance on remote trials

Written on 28 Jan 2021

The move to most trials being held remotely during the pandemic has been, on the whole, a success. It remains to be seen how far the changes will be adopted once normal life fully resumes. Two recent cases have looked at issues which have arisen from remote hearings.

Overseas observers

In Huber v X-Yachts, trial by remote hearing was fixed and directions were given for the proceedings to be conducted wholly as video proceedings. The parties were located overseas. It was common ground that witnesses could give evidence from outside England and Wales but an issue arose as to whether they could attend remotely when merely observing the trial.

The Coronavirus Act 2020 added a new section to the Courts Act 2003 allowing courts to direct that proceedings are to be broadcast so that "members of the public" can attend. Kerr J concluded that there was no requirement for such "members of the public" to be located in England and Wales. Since the provision was added in light of the pandemic, parliament must have intended for that to be the position. Furthermore, "While the right to attend the hearing of one's own case is not absolute … it is obviously undesirable that parties should be unable to attend the trial of their own claim unless absolutely necessary".

Nevertheless, there should be safeguards. Here, the judge decided that only one person for each party should be allowed to attend remotely (with everyone else, including members of the public, only being able to attend from within England and Wales). The parties' solicitors must also inform all those attending remotely of the strict prohibition against unauthorised dissemination of the hearing.

Protecting confidentiality

The issue in Citadel Securities v GSA Capital was that an expert was working from home. The parties had agreed a confidentiality protocol but there was a dispute as to how the expert should access highly confidential information and trade secrets.

The defendant's expert wanted to read the documents at home but the claimant wanted the documents to be kept at the offices of the other side's solicitors (or a local solicitor); and for the expert to be supervised when he reviewed them to ensure that he did not make any hard copy notes. Undertakings from the expert as to his future career and work were also sought to ensure the risk of his sharing information with a competitor in the future was minimised.

Linden J made the orders sought, although the undertaking was restricted to a two year period and an application for a contractual undertaking to the disclosing party was rejected. Although there was no suggestion of any lack of integrity on the part of the expert, there would otherwise be a risk of inadvertent disclosure or that the expert might in future be placed at risk of a conflict of interest. The judge said that "arrangements could be made" if the expert wished to work out of hours, but he did not elaborate on what they might be.

The courts have been adopting a pragmatic approach in order to ensure that hearings can continue to take place notwithstanding the logistical and technical challenges that the pandemic poses. It is worth considering at an early stage whether any special arrangements need to be made that may require the court's approval.