9th Apr 2020

Lucy Coulson looks at the challenges practitioners face in preparing for video trials and practical steps that can be taken to maximise the effectiveness of any hearings.

Litigation has entered a new era with courts up and down the country considering how best to proceed with trials that have all but come to a halt in the wake of the coronavirus. Except in the most urgent cases, which seem likely to be few and far between in the personal injury jurisdiction, it seems unlikely that there will be any small claims hearings or fast track trials in the near future.

There has been some guidance from designated civil judges about how different court centres are planning to proceed. There is a lot of variation, with some vacating cases on masse for weeks and others taking a more short term approach. We are hearing examples of courts testing video hearings, some with success and some with difficulties. There is a concerted effort at the Bar, and particularly at 18, to find a solution and work together to get trials running again.

It would be very difficult to summarise all the local guidance in one article and any such article could be overwritten quickly, due to the evolving situation. This article is a holistic look at video hearings, considering the practical steps to take and consider if a hearing might be suitable for a video trial.

1. Contact Counsel. Get Counsel involved early on and discuss any concerns you have. We want to help and make video hearings a success.

2. Make an offer. It is never too late to make an offer and try to resolve a matter without going to trial. Even if the whole case cannot be resolved, consider if issues can be narrowed so there are fewer questions for the court to determine.

3. Communicate early. Look ahead to identify the claims which are suitable for a video hearing. Discuss with the client, witnesses, counsel, the other side and the court early whether a video trial is possible and what needs to be done to set it up.

4. Joint Proposal. Talk to the other side and discuss different ways a video trial could work. Come to a joint proposal, identifying the platform to be used and dividing responsibilities for setting it up. Approach the court with your joint plan for a video trial.

5. Work with witnesses. For a video hearing the client and witnesses will probably need access to 2 devices – 1 for the e-bundle and 1 for the hearing. Discuss with them early whether they have the technology and a quiet space at home to attend a hearing. They may need a test run to ensure the technology will work.

6. To affirm or not to affirm. Witnesses will need to affirm or take the oath. The wording can probably be provided at trial, but if they wish to use a holy book when taking the oath then they need access to that holy book. If they need to do ablutions before touching the holy book then the Judge may need notifying as a preliminary matter.

7. Contact details. Ask the other side for details of opposing Counsel. This can enable Counsel to Counsel discussions in advance of the trial of evidential, legal or technological issues. Where possible get the name and email of the Judge. Ensure Counsel has contact details for the client and any witnesses in case of emergency on the day.

8. Efficient E-bundle. Streamline your bundle so it only includes the documents that will be referred to at trial. Avoid duplication at all costs. Include only extracts from medical records that are relevant to the issues. Ensure any photographs are good quality and in colour. Tab the bundle in line with the index. Seek assistance from counsel if you need guidance on these issues – they can help identify what is actually necessary at trial.

9. Required Reading. Consider if a precise list of issues and/or reading list (with page references) will assist the Judge. The easier it is for a Judge to focus on the real issues in a case, the more likely it is that a trial will be effective. This should be sent in plenty of time before the hearing, bearing in mind that court staffing is depleted and the email inbox no doubt full of enquires.

The thread that runs through all of the above is communication and co-operation. It will require many people making a concerted effort to work together in order for video trials to work. There will be errors and difficult days, but it is vital that we make a success of it.

It is important for clients that they are able to obtain justice within a reasonable period of time and not have their cases put off indefinitely. Trials are also a necessary part of cashflow for most firms, so getting video trials running again is good for business.

18 St John Street Chambers is open for business. All members of our civil team are available as normal to provide the same high quality and responsive service, whether by telephone or other means. We are all equipped, trained and available to take instructions in relation to remote hearings using technology including (but not limited to) Microsoft Teams, Skype for Business and Zoom.

We understand the challenges that you, our instructing solicitors, are facing in the current climate and we are here to support you in all matters, ranging from an informal chat about any ‘problem’ files you may have, to providing assistance in using remote hearing technology and everything in between.

Please feel free to contact us on our usual contact details and we will be delighted to assist you.