Hearings and trials: the impact of the Covid-19 crisis
Published on 29th May 2020
The UK government’s emergency legislation to deal with the Covid-19 pandemic included provisions to rapidly expand the use of remote hearings, in a bid to reduce the risk of spreading infection. Early evidence suggests that the new system is, on the whole, working well.
Where possible, the courts will try to avoid adjourning hearings and trials and will attempt to carry on with "business as usual". Although, in one recent case, a hearing was vacated to allow for extra time to serve expert evidence and the judge took into account that "it is likely to take longer and require more work to achieve a particular result (such as the production of evidence) by remote working than would be possible by more traditional methods".
The Osborne Clarke disputes team has taken part in a number of remote hearings. Based on this experience, below are some tips on what to look out for and consider ahead of and during the hearing:
- Platforms. Before the hearing, think about which platform should be used. Skype for Business appears to be the default platform in the Commercial Court and the Business and Property Courts. It is worth being aware that attendees are named on the screen as in any other Skype call, so the parties will be aware of who is at the hearing, in a way that does not happen in a physical hearing. There may also be journalists present.
- Test runs. Be ready for test runs at short notice. In one instance our team was involved in, the judge's clerk sent a calendar invite for a test run one day before the hearing, so parties need to be ready to participate during that timeframe. It is a good idea to have the transcribers and recorders available for the test too, if that is possible.
- Draft protocols. Where possible, agree a protocol for the hearing in advance. This might cover: what equipment can be used; the minimum internet bandwidth for all participants; how to compile, format and exchange electronic bundles; and how to conduct the hearing. (For example, will the "chat function" be enabled, the dress code, how to prevent overspeaking, and how will witnesses know when to dial-in).
- Communication within the team. A common approach is to have two or more WhatsApp groups running throughout the hearing, for example, one for counsel only, one for counsel and solicitors and one for solicitors only.
- Be concise. On the day itself, it is particularly important to make everything as concise as possible. In order to gauge the judge's reactions, it can be a good idea to configure the screen so that he or she is highlighted. The timetable of the day will often differ from a normal court day and things can take slightly longer than normal.
Serving claim forms
One issue that may arise during the pandemic is the service of claim forms and other court documents by post or courier services when offices are closed. The Civil Procedure Rules (CPR) only allow for service by email where the recipient has agreed to accept service in this way. If you were asked to accept service by email, it would probably make practical sense to agree if there is a risk that post will be undelivered or unopened at your registered address. Equally, if you are anticipating proceedings in the near future, it would also probably be best to advise of your willingness to accept service by email (if that does not risk inflaming matters).
What if you are not asked and the claim form is posted to the registered address: will the claimant be able to obtain default judgment?
Strictly speaking, service will have been carried out in accordance with the CPR. It remains to be seen how lenient the courts will be (given the current extraordinary circumstances) in setting aside default judgment if a claimant has posted the claim form to an office without any prior discussion with the defendant about accepting service by email.
What if the defendant asks a claimant to serve by email but the claimant instead serves by post. Could a defendant claim that service by post was invalid in the current circumstances?
That would seem unlikely if they have served in accordance with the CPR and there is no obligation in the rules to serve by email just because a defendant has expressed a willingness to serve in that way. However, in Abela v Baadarani, the Supreme Court approved the statement (albeit in circumstances where the claim form had come to the defendant's attention, but not via a valid method) that "The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games".
We are clearly currently in unchartered territory and it remains to be seen what stance a judge might take in any particular case.