Remote hearings and working
May 29, 2020
The pandemic has thrown up a surprising amount of legislation, primary and secondary, and even more guidance. In part this comes from courts, circuits, and different levels of the judiciary but also individual specialist bodies, such as bar associations, but also from solicitor’s practitioner groups. What are the key “do’s” and “don’ts” to pass on from this large body of material? What do I have to know and what is it desirable to know?
The Coronavirus Act 2020 amended the Courts Act 2003 with effect from 25 March 2020. It has the potential shelf life of two years (see sections 88 – 90). The Act allowed for the first time the recording and broadcasting proceedings either by video or audio. As an aside, this follows an earlier attempt to do so in the Prison and Courts Bill 2017 but that bill failed to become law as it fell with Theresa May’s famous snap election of that year!
The aim of that Bill was to encourage the participation of public in proceedings, but as a result of the pandemic this is not merely desirable but essential if there is to be any effective state court system until restrictions are lifted.
The legislation allows for the recording of proceedings and indeed the broadcasting thereof either by video or audio and allows the public to have access to these recordings in certain circumstances. This is considered important to the principle of open justice.
Of more practical importance to practitioners are the changes to Practice Direction 51. Unfortunately, these did not find their way into the 2020 edition of the White Book. The 4th issue of Civil Procedure News has a helpful summary of the rules changes and reference to some of the guidance available. Unhelpfully we have to wait until the second cumulative supplement before anything like a complete set of rules will be available.
The changes to PD 51 have been made under the Civil Procedure Rules 1998. These in turn permit the Master of the Rolls under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, to change the rules in consultation with the rules committee. These must be approved by the Lord Chancellor.
Practice Direction 51 is a of “odds and sods” provision at the end of the CPR. It was originally intended to deal with a transitional arrangements and pilot schemes of one sort or another. For example, there were provisions dealing with the disclosure pilot in the business and property courts and costs lists, but in the pandemic it has become the practice direction of choice to add numerous letters dealing with a wide variety of provisions dealing with the current coronavirus pandemic.
What rules do I have to know?
The changes to PD 51 include (in no particular order):
- The new Practice Direction 51Y supplementing the CPR, which was introduced by CPR Update 116 to allow for video or audio hearings. The key point to note is that during the pandemic “wholly- remote hearings” are permitted, whereby none of the participants are present in a court. Although such hearings can be held in private where necessary for the administration of justice the PD makes it clear that the normal principle of open justice applies and the media should have access to the hearing by making available the video recording when is where appropriate. Any member of the public may seek the court’s permission to listen or view such as a video or recording.
- Practice Direction 51Z, which places they are in possession proceedings and enforcement proceedings on – hold for ninety days from 27 March 2020; and
- Practice Direction 51ZA which allows the parties to agree an extension of up to 56 days for the taking of any step and therefore varies CPR 3.8 (4) which have enacted allowed the parties to agree only twenty-eight days maximum.
The default position is for hearings to be via video link, but as has been seen 5 1Y allows for wholly remote hearings and provides for their recording. If the hearing cannot be video recorded the court can direct for it to be audio recorded.
I have been a surprising number of challenges to the new legislation given its relative infancy and short duration (most of this of the Practice Direction 51 provisions are supposed to cease effect to have effect by 30th October).
As well as checking the guidance for the local court in which your case is listed (important guidance has been issued by HHJ Bird in Manchester and HHJ Gosnell in Leeds) you will need to check carefully the order sent out by the court prior to the remote hearing. Often these are detailed. There is also the Civil Justice Protocol on Remote Hearings, which has found its way into the First Cumulative Supplement if the current White Book.
Inevitably an e-bundle will be needed. This should be no more than 10 MB, or no more than a hundred pages, be hyperlinked and in PDF format. You will need to get PDF Pro or PDF expert to prepare the bundle. The bundle will need to be collated into a single PDF with electronic bookmarks and an index. The correct numbering system will need to be used in the text which will need to be searchable.
Practitioners are strongly encouraged in all practice directions and guidance to cooperate. A “test run” is a good idea prior to a hearing of any length or complexity.
My top tips for handling advocacy at remote hearings, including telephone hearings, is to have a second electronic device with you at all times for backup and an arrangement in place for loss of the link. Often this can be accomplished by having a separate telephone number to phone as well as your current phone.
However, the limitations of these hearings can be painful to see, as the Court of Appeal explained in the case of Re-B  EWCA Civ 584. That tragic case involved a 9-year-old child being taken into foster care because the recorder was in apparent ignorance of some of the key facts should have been put before him when he conducted a telephone hearing. The court commented on significant pressures that these hearings place on all parties, their representatives, and the court service, especially judges. They also emphasised the principles of fair and open justice cannot be sacrificed. In family cases this can have particularly significant and potentially irreversible consequences.
What about the client?
Try look at it from the litigant’s perspective as there are real difficulties in communicating with the client and there is scope for the client to feel disgruntled because he does not feel he is involved. Have you given him a full opportunity to be heard? Has he had an opportunity to give you full instructions?
Often a problem arises from a poor understanding of the technology. There is an ability to have breakout sessions on Teams and on Skype. The courts, however, primarily use Skype.
Clarity will also be needed as to who is to handle the recording and how to make it available, as this is provided for the legislation. In particular, you may request a report a copy of the recording in the Practice Direction 51 Y.
How much scope is there for advocacy?
Advocacy at the hearing has to be kept brief and clear and should follow closely your written argument. Familiarity with the document is more important than at a traditional hearing. Make sure you can be seen and heard. Try and have an order of speaking which does not involve people “over speaking”. Beware of being heard during confidential conversations
There is a large amount of guidance available (see for example the guide issued by the Inns of Court College of Advocacy).
Top tips for homeworking
For many practitioners they are having to adapt from a relatively supportive environment of an office to being on one’s own for the whole working week, often spending time in one room. Devising a timetable for the working day and deciding when to work and when not to are therefore important.
I would suggest the following if you are not to be disappointed:
- Do not expect to achieve too much;
- Try to stay in touch with clients and colleagues;
- Turn the computer off before you have supper each day!
- Have a “not to-do” list as well as a “to- do” list. This avoids doing unnecessary tasks which waste time and money and allow you to get on with necessary tasks;
- Keep the “to-do” list short as the list will be abandoned if it is unachievable!
Finally, ask yourself at the end of each day what has been my highlight? If you do not have one you are doing something wrong!
As I conclude this article, the DCJ in Leeds has announced the resumption of attended hearings from 8th June but only those suitable for between 6-9 participants and, initially, only one at a time. Therefore, remote hearings and working may be with us for some time to come.