7th Jul 2020

Christopher McNall recently finished five days appearing as counsel in what may be the first trial in the High Court in Wales, conducted remotely, to use Welsh. // Rwyf newydd orffen pum niwrnod yn ymddangos fel cwnsler yn yr hyn a allai fod y treial cyntaf yn yr Uchel Lys yng Nghymru a gynhelir o bell i ddefnyddio’r iaith Gymraeg.

To read this article in Welsh, click here.

The trial was not entirely ‘remote’. My client – a Welsh-speaking hill farmer without reliable broadband access – was in Wrexham courthouse, together with my instructing solicitor*, and an interpreter: all socially distanced, of course. Everyone else was at home, or in their solicitor’s office.

Since 1993, any party, witness or other person may, subject to prior notice, use the Welsh language in court in Wales, and any necessary provision for interpretation shall be made accordingly (Section 22 of the Wales Language Act 1993). Interpretation was arranged by HMCTS. Our court-appointed interpreter is a well-known cultural figure in Wales – a bard famous for his ‘englynion’, and indeed a past winner of the Eisteddfod’s Crown.

The week before the hearing, we held (by phone) a Case Management Conference before the trial Judge (His Honour Judge Keyser QC). That was useful to iron out the practical arrangements. We used HMCTS Cloud Video Platform (CVP) which worked well. We found an arrangement of a quartered screen – with the Judge, both Counsel, and the witness – worked well. Remember that any remote witnesses will need a Bible or Holy Book to hand if they are going to give evidence on oath.

Listening to and doing cross-examination sitting at my own dining room table was not as strange an experience as I had thought it might be. In reality, in some ways, it was a more fluent experience than in Court. In my view, the quality of the evidence was not affected at all, and may even have been better.

The evidence began with simultaneous translation, but we could hear both the witness and the interpreter on the same microphone, so we moved to sequential translation. It worked well.

I am now a firm convert to this new way of working. I do now wonder why we would want to go back to the old ways. If a high-value High Court trial involving oral evidence can be done, fairly and justly, remotely, then why change? This is a particular issue in Wales where the High Court centres are few and far between, and involve travelling long distances for all participants (and even longer for those of us who live across Offa’s Dyke).

*I was instructed by Osian Roberts of Guthrie Jones and Jones, Denbigh.

Christopher McNall specialises in disputes about tenanted and freehold farms and land (and especially agricultural tenancies under the Agricultural Holdings Act 1986), taxation (especially of agricultural land), proprietary estoppel, and inheritance.

He has appeared in many leading agricultural and tax cases in the Court of Appeal, the High Court, the Agricultural Lands Tribunal, and the First-tier Tribunal. He is Chairperson of the Agricultural Lands Tribunal for Wales, a Deputy District Judge, and a fee-paid Judge of the Tax and Property Chambers of the First-tier Tribunal.

Christopher was Consultant Editor for the ‘Agricultural Holdings and Allotments’ title in the 2018 edition of Halsbury’s Laws of England and writes the ‘View from the Bar’ column for the Agricultural and Rural Affairs section of Practical Law. His book, ‘A Practical Guide to Agricultural Law and Tenancies’, was published recently.

For more information on Christopher McNall please contact a member of our Business and Property Clerking Team on 0161 278 8261 or email businessproperty@18sjs.com