A remote substantive hearing: the practical, the inevitable, and the future?

A remote substantive hearing: the practical, the inevitable, and the future?

CategoryNews Author Richard Harwood OBE QC, Stephanie David Date

Richard Harwood QC and Steph David made a ‘virtual’ appearance for a local planning authority in a judicial review matter concerning development plan policies and flooding risk today. The hearing was before Mr Justice Dove.

“Our headline point is that the court system is making a concerted and commendable effort to make sure hearings proceed and go ahead as smoothly as possible. It is the sort of effort and ingenuity which will get us through this.

Before running through some considerations, there is now a protocol regarding remote hearings, which we strongly recommend reading and can be accessed here.

We have pulled together a list of considerations, which are hopefully useful:

The practical:
  1. How are you going to communicate with your client during the hearing? We found a combination of WhatsApp and a Skype chat were very useful, although it might be that you want to learn how to turn the notifications off if you are in the middle of your submissions.
  2. How are you going to take instructions before the hearing and during any adjournments for lunch or otherwise? We spoke to our clients via a Skype voice call before the hearing started, during the lunch break and after the hearing. It was an easy and effective way of taking instructions. For smaller teams, you could also consider using a voice call on WhatsApp, given the limit to the number of people involved in the call.
  3. How do you ensure your conversation is as far as possible confidential? Each time I set up a new group I asked everyone to verify who they were and their job title.
  4. Does everyone have the relevant login details for the hearing itself and know the start times? There was a little bit of confusion as to which number to call, but with an incredibly helpful court clerk, we successfully all joined the call.
  5. Can everyone access the relevant documents and authorities? Our fantastic solicitor circulated electronic copies of both bundles so that everyone had access to the relevant material. For documents provided last minute, I could share them through the Skype group chat.
  6. It goes without saying but…those who are not speaking need to make sure that they are on mute. At one point, we heard some slightly aggressive (or heavy-handed) typing (the keyboard warriors in all their glory).
  7. Who is speaking? Hearings are easier than a telephone conference in this regard because of the rigid structure they follow, however it might still be worth flagging who you are before you speak.
  8. How to organise the papers? There are virtues in not having a judge to look at. Your speaking notes can be up on your screen without being a barrier to advocacy and you can edit them on the go. Seeing electronic notes from the team and sending questions back is easier than the scrawl on a post-it.
  9. Importantly, what do you wear? When Richard appeared towards the end of the hearing in the Skype video, I was saddened to see that he was not wearing his wig and robed. More seriously though, it is probably worth wearing something that is smart, casual on the basis that you can inadvertently turn the camera on (maybe also check what is behind you in the room and/or consider a green screen).
  10. Anything else?
    • We all remember when two children barged into the room when Professor Robert Kelly was being interviewed by BBC News about South Korea (if not, you can watch it again here). Again, this is obvious advice, but it is probably good to make sure that family/co-habitees know that you are on a hearing;
    • Stop all the clocks. There is a reason why the clocks in the only RCJ courtroom don’t strike the hour, and even ticking might be off putting
    • Finally, don’t accidentally take a screenshot up your senior barrister’s nose during a Skype video call and share it with your solicitor and the clients… [now deleted – Ed]
The inevitable:
  1. Individuals will drop in and out of the call (as this YouTube clip “A Video Conference in Real Life” so effectively captures), but keep calm and carry on. It probably isn’t a strategy deployed by your opponent to put you off your game.
  2. The line might break up – Richard helpfully flagged at the start of his submissions that we should say if he could not be heard. Our clients raised the issue on Skype and the judge did too. It seems that speaker phone can result in a worse connection, as can certain rooms in a flat. It might also be useful to try a landline if you have one.
The future?

Whilst current tragic circumstances have forced the current arrangements upon us, remote hearings in at least some cases could be the future; and we have to say, whilst we will miss the itchy wigs and gowns sliding off our shoulders, there are benefits:

    1. It encourages us to go paperless, by the use of screens instead.
    2. It improves communication with our clients.
    3. It matters to an even greater extent how our points are articulated.”

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