Legal briefing | 19 May 2020 |

Key practicalities for remote hearings

The transition towards a digitalised legal system has long been on HMCTS' cards, however it is only now that real strides have been taken to achieve this. In light of the Covid-19 outbreak, all hearings (insofar as possible) are taking place remotely, i.e. via a video calling platform. Whilst it may appear more appealing to attend hearings from the comfort of your own home, this new method of delivery comes with a host of new practical and technological obstacles.

We recently attended a one-day virtual hearing in the Commercial Court, for which no witnesses were called; as such, it was a gentle introduction to the new age of digital courtrooms. Our experience was positive, with the Judge commenting on how he was encouraged that virtual hearings were entirely workable where there is cooperation between the parties and a good electronic bundle. Good preparation is key. We have detailed below our reflections on the process, along with some practical tips.

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Technology

The Court's platform of choice was Skype for Business, which should be accessed via the relevant desktop software (rather than the web app). Beware of technological issues associated with using Skype for Business on Apple MacBooks, as the software may not recognise the built-in microphone.

Top tip

Consider using a separate conferencing facility such as Zoom for breakouts. Zoom allows the 'host' to admit people into the room, control who enters and have overall visibility of the participants. This can be extremely useful if you are expecting various parties (such as clients and Counsel) to join at different times. Be mindful of any privacy issues when using Zoom, which can be addressed by adjusting the privacy terms of your enterprise licence as necessary.

Instructions

We needed to find a virtual way to pass our "post-it note" instructions to Counsel. Replicating the ease and effortlessness of the usual set-up required creativity and flexibility, and we ultimately decided that WhatsApp was our best bet. Instant messaging proved to be a quicker and more effective method of communication than email. All things considered, WhatsApp worked well, but Counsel could not acknowledge our messages with their usual nod or a shake of the head as they would have done in a physical courtroom.

Top tip

Consider installing the relevant desktop software so that messages pop up on screen rather than on mobiles.

Test runs

Test runs were an integral step in preparing for the hearing to check the processes in place and Counsel's equipment. We conducted a test run of Skype for Business, Zoom and WhatsApp with Counsel a week prior to the hearing. This was useful in bottoming-out any issues with Counsel's audio and webcam set-up, and to test the various software. With the assistance of the Judge’s clerk, an additional all-parties test run on Skype for Business was held the day before the hearing.

Top tip

Conduct any test runs sufficiently far in advance to allow enough time to order additional equipment if needed.

Bundles

Parties need to consider what documents are essential, and only include those that are in the core bundle. It is important to also familiarise yourself with the electronic bundle in advance of the hearing and consider whether it would be worth hyperlinking the bundle, for ease of reference during the hearing.

Top tip

One feature of Skype for Business is Counsel's ability to share their screens. This was not utilised in our hearing, but we imagine would have been invaluable in the event that documents needed to be 'handed-up'.

Open justice

One concern with the move to remote hearings is the impact on open justice. We should note that, in our case, several journalists were able to join our remote hearing; the hearing was no less open than it would have been if held in person.

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