Remote hearings in the TCC – putting Practice Direction 51Y into practice

16th Apr 2020

Observations and practical tips from Camille Slow, Atkin Chambers

There are some things that I would never have anticipated would be said to me in a court hearing by my opponent.  I think the sentence “It appears Miss Slow has been conducting this hearing from her bathroom, she appears to be sitting in front of her shower curtain” has to be up there towards the top of the list.

As we enter the brave new world of remote hearings I thought I would share my experience from my recent case which was, I understand, the first all day remote application hearing ever conducted by the TCC.

The totality of the hearing from submissions through to judgment and a determination on costs was conducted remotely and whilst perhaps bizarre at first, the process was, I think, properly characterised as a success.

The hearing was conducted in accordance with Practice Direction 51Y.  I hope to give you here an idea of how well the remote hearing worked and provide some practical tips and guidance for conducting court hearings in the COVID-19 world.

Setting up recording for the first time

Teething problems are to be expected and for reasons that weren’t entirely clear Skype for Business was only reliably recording the session for 30 minutes at a time, necessitating the judges’ clerk restarting the recording every 30 minutes.  This sort of problem could lead to very small gaps in the hearing.  This is perhaps insignificant in the context of an application hearing but would be suboptimal in a hearing with live witnesses, it would be unfortunate if the recording were to pause at the precise moment when the witness says: “on reflection I don’t think we were proceeding regularly and diligently at the time of the termination”.  For those that are not aware it is worth noting that it is not necessary to incur the cost of a subscription to Skype for Business to participate in a hearing conducted using Skype for Business.

It is possible however for court recorders to also join the hearing and make a transcript in the usual way.

In fact, my note of the judgment in the case, which I typed silently throughout, is doubtless the most accurate note of a judgment I have ever taken and has the significant advantage that I do not have to be able to read my own writing to see what was said.

Preparation for remote court hearings

There are some important practical steps to make in preparation for a remote hearing.

Checking and practicing with the technology is one (see below).

Another important step is the preparation of the electronic bundle.  Obviously, it would be possible in theory to have a remote hearing with a hard copy bundle but the restrictions in place which make attendance at court impractical also affect the practicality of producing a hard copy bundle.

My instructing solicitors, Trowers & Hamlins LLP, prepared a remote bundle and made it available for download on a document storage platform, a step which was much praised by the judge.  Counsel prepared a joint electronic authorities bundle and that, together with skeletons, statements of costs etc were all put on the same portal.  It was obviously open to any participant to print their own hard copy documents.

It remains to be seen if this the use of hard copy diminishes permanently as a result of this period of remote working now that readily available technology properly supports electronic bundles.

Having the right home office set up, etiquette and the importance of practice

It is worth noting here that for me the remote hearing was made much easier because I had three computer screens set up – that way I could be watching the proceedings and have the document bundles open at the same time. Where practical, I would strongly recommend the use of multiple screens in particular for longer and more document heavy hearings.

All participants not actively involved in making submissions were able to have their cameras turned off and microphones muted, when Counsel was not speaking the mute function was used to minimise background noise.  There were only a very few instances of me trying to speak whilst still ‘muted’.

There was no need for participants to formally ‘rise’ at the start and end of the sessions, so those feeling brave enough could technically get away with conducting the hearings in a suit top and jeans (for the record that is not something I would recommend).  Indeed, it is somewhat surreal conducting a court hearing from your kitchen / bedroom / bathroom (as the case may be) and clinging on to the usual rituals helps to get and keep you into the right frame of mind.

Taking instructions was, if anything, easier remotely than in court as it was possible for Max Twivy, who also appeared with me in the case, and instructing solicitors to send e-mails which I could review during submissions without breaking my stride.

With the assistance of the judge’s clerk we conducted a ‘test’ by following the court’s Skype invite and dialling in 30 minutes before the start time just to check everything was working well.  This is a good idea to ensure there are no connectivity issues and to allow time to resolve any IT issues.  Unfortunately the test call did not prevent me from being unable to hear anything anybody else was saying when I dialled in for the hearing proper but I was able to resolve the issue relatively quickly.  During the lunch adjournment it was possible to sign out or mute sound and close video (I opted for the latter to avoid a repeat of my sound issues).

Once the hearing was underway it all started to feel a bit more normal.  We could see and hear the judge and deal with submissions and questions almost in the usual way. I confess I spent much of the hearing fearing that we might be joined by my two small children and / or dog at any moment.  Thankfully that did not happen but I think that judges will be realistic about the fact that many of us are juggling family and work commitments in these times and that there is a limit to what can be done to avoid video bombing children and pets when everybody is required by the Government to stay in the home.

Working with instructing solicitors and their clients

A good tip to steal from Trowers & Hamlins was to have a telephone dial in available to the legal team and client throughout the day.  That permitted the solicitors to liaise with the client as necessary and I was able to dial in before the hearing, during the adjournment and afterwards to discuss the hearing with the client, just as I would normally do in the court corridor.

Indeed the remote hearing offered greater flexibility for them to keep the client updated and take / give instructions than could normally be accomplished by whispering and passing scribbled notes.

My instructing solicitors remarked that the whole experience was quite different for them in that they were able to see Counsel’s faces, something not usually possible when sitting behind.

The future for remote hearings

All things considered remote hearings are, I think, something which we could get used to pretty quickly as they become, for the time being at least, the new normal.  Clearly there will be more compromises to be made in hearings involving live witnesses but I can now at least see that such hearings might well be successfully conducted remotely once the teething problems are ironed out and we all get our heads around the brave new world.

For the record, I did not conduct the hearing in my bathroom.  I did however realise on the Sunday night before the hearing that my office, which has recently become an office come classroom was perhaps not looking very professional.  Accordingly, in lieu of actually tidying it up I found and erected a screen. On reflection this attempt to appear professional backfired somewhat!

Camille Slow is a barrister at Atkin Chambers

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