Business as usual? Early lessons learnt in handling litigation remotely

The phrase “business as usual” has become cliché overnight.  Hardwicke’s CDR team is attending hearings, drafting and advising and just as before. But, as regards litigation, the phrase is not wholly accurate.  The courts are not operating as usual, solicitors and barristers are working remotely, and it’s not yet clear how the current crisis will impact the commercial litigation market.  From that perspective the situation is very unusual.

New technology

The Hardwicke CDR team has adapted quickly to business as usual under unusual conditions.  At Hardwicke, we have learned a number of lessons very quickly.  Many of these lessons involve existing technology.  Microsoft Teams organisation and Zoom conferences have already become and will likely remain a mainstay of chambers’ internal working practices.  Members have already conducted various remote mediations, Zoom seminars and much of our upcoming 2020 seminar program is being transferred to an interactive video model.  Conferences with client by video is now the norm.

Hearings

The more significant question is whether hearings are continuing and, if so, how to approach them.  While it’s true that the majority have been adjourned, many are certainly ongoing.  In our experience, the key to ensuring hearings proceed remotely is proactivity from the parties’ representatives and the court – where there is a will there is usually a way.  Don’t assume that both sides need to agree for a hearing to go ahead: adjournments are not being granted as of right if it is possible and fair to proceed.

In recent days, Hardwicke’s members have attended:

• Court of Appeal and High Court video appeals by Skype
• a week’s video trial by Skype
• a day’s telephone trial
• a 5-hour contested summary judgment/strike out application
• a video conference for a block listing – 5 hearings attended by 26 people in one conference
• the winding up list – an ‘invite only’ Skype session
• telephone hearings as usual in the High Court and the Employment Tribunal

Five early lessons learned

This is an early opportunity to share our experiences of litigating under these unusual conditions and offer any practical insights we have picked up on the way.  These tips are purely practical; substantive Hardwicke CDR material and upcoming seminars can be found here.

• Start with the obvious: use the best internet connection possible, mute yourself when not speaking and think about your background. Think about the pinch points.  It won’t be possible to ‘hand up’ documents.  If your court operates CE-Filing, use it.  Otherwise, lodge everything by email in advance and be ready to email the court during proceedings if necessary.  Decide on a protocol for instructing solicitors to ‘hand’ notes to counsel: e.g. email, Whatsapp, private ‘chat’ functions in Zoom/Skype – although probably avoid TikTok for the time being.
• Make yourself familiar with whatever technology platform will be used for the hearing. Download the software in advance and take the opportunity to sign into the hearing early and try using it.  Skype for Business seems to be most popular with HMCTS presently for video hearings.  Know how to work microphone, video, mute, volume.  Think about how many screens you will need open.
• Written submissions take on greater importance remotely, adjust them accordingly.   Remote hearings are an opportunity to be creative: screen sharing gives advocates the opportunity to talk the court through documents more compellingly than simple hard copy bundles.  On the other hand, remote hearings are more stilted, interruptions are more annoying and less effective.  The remote experience can be more draining than attendance in person so consider breaks for advocates and witnesses.  There is a higher premium on clear, concise submissions.
• Be aware of privacy issues – is the ‘chat’ box private between you and your client/counsel? Don’t be the test case on inadvertent waiver of privilege on Zoom. Mute during breaks:  providers will often require attendees to stay connected during the break – don’t be overheard.
• ‘Door of court’ settlements will be rarer for the time being. Consider how you can might use technology to conduct WP meetings around the hearing.  Members at Hardwicke have already had experience of settling claims in this way during lockdown.

Up to date information

One of the major difficulties at present is that different courts have reacted differently to the crisis.  Members of Hardwicke’s practice management team are the first and best port of call for the most up to date information about current listing policies – click here for all the latest updates. 

In the Commercial Court hearings are proceeding unless parties apply to adjourn, using telephone, Skype and even broadcasting on Youtube.  Parties should explore the possibility of proceedings remotely before applying to adjourn.

Otherwise, these are the most useful references we have found for up-to-date information:

• The Chancery Bar Association’s general updates page
• HMCTS general advice page here and daily summary here
• HMCTS guidance on telephone and video hearings during coronavirus outbreak here
• HMCTS list of open, staffed and suspended courts here, guidance on changes here, and priority courts here
• The latest from the Court of Appeal
• County Court business
• The latest guidance from the Bar Council on video conferencing, data protection and confidentiality is here and e-bundling here

Finally…

We’d be interested to know of your own experiences and any helpful experience or materials you’ve come across so please do contact Jack Dillon.