Remote trial or adjournment?
Daniel Shapiro QC and Caroline McColgan identify particular considerations the Court may consider in deciding to conduct a trial remotely or to adjourn the trial. They analyse the factors in two differing Commercial Court and TCC decisions, which may be applicable to the Business and Property Courts more generally.
Everyone’s priority in these difficult times is the health of their families and friends, and society more generally. The need to protect the NHS sees almost all lawyers at home. In these circumstances, the Judiciary and the Courts are seeking to continue the work of the Courts. That is a particular challenge for the English Court system, which has at its foundation the principle that disputes are to be resolved at trial through hearing evidence tested in cross-examination and oral submissions. That is easiest to achieve in a hearing in person, as recognised by the warnings in paragraphs 2 and 3 of the Third Annex to Practice Direction 32 deals with the use of videoconferencing at trial. Although the Protocols which were published in late March suggested that consideration should be given to whether it would be possible or necessary for the parties to come to court, in practice matters have moved on and, it seems unlikely that judges exercising their case management powers would expect litigants to attend Court in other than very exceptional cases. As a trial in person is not typically practicable, one has to determine how to proceed: remote trial or adjournment?
The factors underlining the Court’s answer to that question are well-illustrated by the recent decisions of O’Farrell J in the TCC in Ramvel v Countryside & Bartlett and of Teare J in the Commercial Court in National Bank of Kazakhstan v The Bank of New York Mellon. O’Farrell J adjourned the forthcoming trial in Ramvel. Teare J pressed on and heard the trial in National Bank.
First, neither O’Farrell J (in the Technology & Construction Court) nor Teare J were concerned by the technological aspects of a remote trial. That is unsurprising. BPC Judges and practitioners frequently work with electronic trial bundles and typically have experience of witnesses giving evidence by videolink. As O’Farrell J commented, Skype for Business makes it relatively easy and allows documents to be shown immediately on everyone’s screen. The trial in National Bank proceeded successfully using Zoom and with a live feed to YouTube, demonstrating that a remote trial may be practical and effective.
Second, it was the practical (or impractical) aspects of hearing a trial which proved decisive. This was bound up with the health of the participants. Teare J had a trial ready to go, where the participants were then in good health, where it might even have been more convenient for the overseas witnesses to give evidence by videolink, and where the trial was only a week in length. Significantly, the trial was completed before the impact of COVID-19 had become too bad in the UK. By contrast, O’Farrell J was faced with a three week trial, scheduled to start on 27 April 2020 (predicted to be at or around the UK peak time for infections) and she was concerned that illness might affect the Judge, Court Staff, Counsel, solicitors, experts, or witnesses and that any such illness would disrupt the trial. That was a particular concern given the large numbers of expert and lay witnesses in the case before her.
There were further practical aspects in the particular circumstances of concern to O’Farrell J. One of the experts was in isolation but without internet access. Another witness was actually suffering from COVID-19. Another witness was an NHS worker while two others were key workers. Others were single parents with childcare commitments.
Third, O’Farrell J was able to offer a re-listed trial date in September. In a subrogated action between insurance companies who did not require immediate payment, a five-month delay was of less consequence than ensuring that the trial could go ahead without disruption.
The principles which can be drawn are:
- The primary consideration is likely to be timing. If the trial is to be heard before the end of May (after which point things will hopefully have improved) the Court will be more likely to adjourn it. We suspect that trials from June onwards are more likely to proceed remotely (although that may change if COVID-19 cannot be brought under control).
- The length of trial is important. If the trial is short, it is more likely that all the participants will remain well for its duration if it proceeds.
- The number of witnesses involved is relevant. The more witnesses there are, the greater the risk of disruption from particular witnesses falling ill.
- Whether the experts or lay witnesses are key workers is relevant. At the moment nobody wishes to take a doctor or nurse away from vital hospital work dealing with a pandemic to give evidence in a trial. We would hope the prospect of a Court ordering them to do so is minimal.
- If the matter cannot be relisted within a reasonable period, it may make more sense to press on with the trial, even at risk of the trial collapsing.
A final thought is the lasting impact this pandemic might have on the practicalities of the administration of justice in the UK. While the tradition of oral advocacy in a Courtroom is strong, and we expect the Courts to return to trials in person, we anticipate that there will be increasing use of the technologies with which everyone has had to become familiar. Electronic bundles, particularly if they are simply an indexed and cross-linked PDF, are easy to use and are often cheaper to produce than paper bundles (and kinder to the trees). The increasing use of Skype and Zoom is likely to mean that more witnesses give evidence by videolink. Certainly, the Courts and the parties should consider listing for hearing by videolink those hearings now listed as by telephone.